Vowell v kander final appellant's reply brief by David Roland

WD77591

IN THE MISSOURI COURT OF APPEALS, WESTERN DISTRICT

NATALIE A. VOWELL, Petitioner-Appellant v. JASON KANDER, in his official capacity as Missouri Secretary of State Defendant-Respondent

APPEAL FROM THE NINETEENTH CIRCUIT COURT The Honorable Jon Beetem, Judge APPELLANTâ&#x20AC;&#x2122;S REPLY BRIEF

David E. Roland, MBE #60548 14779 Audrain Co. Rd. 815 Mexico, Missouri 65265 Phone: (314) 604-6621 Fax: (314) 720-0989 Email: libertyandjustice@gmail.com Attorney for Petitioner-Appellant

TABLE OF CONTENTS

TABLE OF AUTHORITIES……………………………………………………

ARGUMENT……………………………………………………………………

Vowell’s Petition Presented A Justiciable Claim …………………. 1

II.

Vowell Preserved Her Constitutional Claims For This Appeal….. 5

III.

The Secretary Misstated The Factual Record And Its Implication For Vowell’s First Amendment Argument ………..……………… 8

IV.

The Secretary Misunderstands The Analytical Framework Required For This Case ……………………..…………………… 11

The Secretary Failed To Address Any Durational Voter Registration Cases…………………………………………………. 15

CONCLUSION…………………………………………………………………

TABLE OF AUTHORITIES CASES

PAGE(S)

Anderson v. Celebrezze, 460 U.S. 780 (1983)………………………………………………..

12-13, 15

Antonio v. Kirkpatrick, 579 F.2d 1147 (8th Cir. 1978)………………………………………

Bd. of Supervisors of Elections of Prince George’s County v. Goodsell, 396 A.2d 1033 (Md. 1979)…………………………………………

Buckley v. American Constitutional Law Foundation, Inc., 525 U.S. 182 (1999)………………………………………………..

10, 11, 15, 16

Burdick v. Takushi, 504 U.S. 428 (1992)………………………………………………..

Callier v. Director of Revenue, 780 S.W.2d 639 (Mo. banc 1989)………………………………….

Crawford v. Marion County Election Board, 553 U.S. 181 (2008)………………………………………………..

Eu v. San Francisco County Democratic Central Committee, 489 U.S. 214 (1989)………………………………………………..

Gangemi v. Rosengard, 207 A.2d 665 (N.J. 65)……………………………………..………

Henderson v. Ft. Worth Independent School Dist., 526 F.2d 286 (5th Cir. 1976)……………………………………….. ii

Lubin v. Panish, 415 U.S. 709 (1974)………………………………………………..

Labor’s Educational and Political Club-Independent v. Danforth, 561 S.W.2d 339 (Mo. banc 1977)………………………………….

13, 15

McDaniel v. Paty, 435 U.S. 618 (1978)……..………………………………………….

Norman v. Reed, 502 U.S. 279 (1992)………………………………………………..

Opinion of the Justices, 554 A.2d 466 (N.H. 1989)………………………………………….

State ex rel. Burke v. Campbell, 542 S.W.2d 355 (Mo. App. E.D. 1976)……………………………

State ex rel. Gralike v. Walsh, 483 S.W.2d 70 (Mo. banc 1972)………………………………………….

12, 13

State ex rel. Farris v. Roach, 150 S.W. 1073 (Mo. 1912) ……………………………………….

4-5

State ex rel. York v. Daugherty, 969 S.W.2d 223 (Mo. banc 1998)………………………………………….

St. Louis County v. State, 424 S.W.3d 450 (Mo. banc 2014)………………………………….

Timmons v. Twin Cities Area New Party, 520 U.S. 351 (1997)……………………………………………….. iii

Treiman v. Malmquist, 342 So.2d 972 (Fla. 1977)………………………………………………..

United C.O.D. v. State, 150 S.W.3d 311 (Mo. banc 2004)……………………………………

Washington State Grange v. Washington State Republican Party, 552 U.S. 442 (2008)………………………………………………..

STATUTES Section 115.526, RSMo …………………………………………………... Section 536.150, RSMo …………………………………………………….

1 3,4

CONSTITUTIONAL PROVISIONS First Amendment to the U.S. Constitution…………………………………..

passim

Fourteenth Amendment to the U.S. Constitution……………………………

passim

Article I, Section 8 of the Missouri Constitution ………………………...

Article I, Section 10 of the Missouri Constitution ………………………...

Article I, Section 25 of the Missouri Constitution ………………………...

Article III, Section 4 of the Missouri Constitution ………………………….

2, 17

Article V, Section 18 of the Missouri Constitution…………………………

ARGUMENT I. Vowell’s Petition Presented A Justiciable Claim Because the case proceeded as a Motion for Judgment on the Pleadings, this Court must treat as true the facts Vowell presented in her Petition and must also afford Vowell all reasonable inferences drawn from those facts. On March 11, 2014, Vowell filed a Declaration of Candidacy for election to serve the 78th District in the Missouri House of Representatives; at that time she had been a qualified voter for eight months. Her paperwork was complete and the Secretary accepted and filed it without objection. Section 115.526, RSMo., provides the mechanism through which a candidate’s qualifications to serve in the office they seek can be challenged. No one filed any such challenge to Vowell’s qualifications. Even though no court had ruled Vowell ineligible to be elected, and even though the statutory deadline for a Section 115.526 challenge had passed, the Secretary informed Vowell that he disputed her qualifications and intended to exclude her from the ballot. Vowell filed suit alleging that Missouri law does not allow the Secretary to render his own judgments about a candidate’s qualifications or to exclude from the ballot a candidate whose qualifications have not been successfully challenged under Section 115.526. Vowell also asserted that a decision to exclude her form the ballot would violate various constitutional rights. Respondent’s Brief argued that before a court may consider a petitioner’s claim (1) the petitioner must have a legally protectable interest, (2) there must be a substantial controversy between parties with genuinely adverse interests, and (3) the controversy must be ripe for judicial determination. The Secretary’s contention is that Vowell has no “legally 1

protectable interest” in continuing her candidacy to serve in the Missouri House of Representatives because she has only been a “qualified voter” since July 2013. He does not dispute the substantial controversy between the parties or the ripeness of the controversy. But the Secretary confuses the issue. In her petition and at argument below, Vowell not only challenged the Secretary’s unilateral, unauthorized decision to exclude her from the ballot, she also raised several constitutional challenges. These included a challenge to the requirement found in Article III, section 4 of the Missouri Constitution that a citizen may not serve in the Missouri House of Representatives unless they have been a qualified voter for the two years immediately preceding their election. Even though Vowell will only have been a qualified voter for sixteen months before this November’s general election, she filed her declaration of candidacy and sought to have her name on the ballot.1 The Secretary accepted her declaration of candidacy and only later made the unilateral, unauthorized decision to exclude her from the ballot. Even if this Court were to determine that the durational voter registration requirement is constitutional, Vowell still has a right to contest the validity of that requirement when, as in this case, it directly affects her. “In a declaratory judgment, the criterion for standing is whether the plaintiff has a legally protectable interest at stake.” St. Louis County v. State, 424 S.W.3d 450, 453 (Mo. banc 2014). “Standing can be based on an interest that is ‘attenuated, slight or remote,’”

Without taking this action, it is questionable whether Vowell would have standing to

challenge the durational voter registration requirement. 2

as long as there is “a showing of an actual personal interest or stake in the outcome of the litigation.” Id. In this case, Vowell is a candidate for political office. She submitted the required paperwork at the appropriate time and the Secretary accepted and filed her declaration of candidacy. No one followed the statutory procedures to challenge her qualifications. Nevertheless, the Secretary unilaterally and without statutory authorization rendered a quasi-judicial decision that threatens to end Vowell’s candidacy by excluding her from the ballot. The Secretary’s action has directly and adversely affected Vowell. These facts alone, regardless of how long she had been a qualified voter prior to submitting her declaration of candidacy, establish that Vowell has a “legally protectable interest at stake,” thereby satisfying the only aspect of justiciability the Secretary has challenged. But even if the Secretary is correct that these facts do not establish that Vowell has been directly and adversely affected by the Secretary’s action, Missouri law makes clear that a “legally protectable interest” may be conferred by statute. Count Two of Vowell’s Petition contended that the Secretary had denied her procedural due process by rendering a determination about her qualifications without affording her a hearing or offering her an opportunity to appeal his determination. [LF at 9-10]. At the hearing before the trial court the Secretary argued that Vowell had not been denied due process because his office was subject to the Administrative Procedures Act and that Section 536.150 provided Vowell a mechanism through which she could appeal any decisions the Secretary made about her qualifications without affording her a hearing. [Tr. at 16]. The trial court agreed, yet, because it found that Vowell lacked standing to assert any challenge, the trial court also

rejected Vowell’s procedural due process argument below. [LF at 22-23]. Neither party appealed this ruling, so both parties agree that the Secretary is subject to the Administrative Procedures Act. Section 536.150, RSMo., states that it applies to “any administrative officer or body

existing under the constitution,” and the Secretary concedes that he is one of these officers. Article V, section 18 of the Missouri Constitution grants the judiciary authority to review “[a]ll final decisions, findings, rules and orders of any administrative officer or body existing under the constitution or by law, which are judicial or quasi-judicial and affect private rights,” and it explicitly says “such review shall include the determination whether the same are authorized by law[.]” Vowell’s Petition directly raised the question of whether Missouri law authorized the Secretary to make a quasi-judicial decision regarding Vowell’s qualifications to serve in the legislature. [LF at 8]. Thus, Vowell has undeniably demonstrated the “legally protected interest” required to confer standing in this matter and, once again, regardless of the ultimate decision about the constitutionality of the durational voter registration requirements, Vowell is entitled to have a court rule on the Secretary’s authority to exclude her from the ballot.

Furthermore, the Secretary’s discussion of justiciability utterly ignores State ex rel. Farris v. Roach, 150 S.W. 1073 (Mo. 1912), a Missouri Supreme Court case that is directly on point. As Vowell explained in her brief, the Farris Court not only allowed a candidate in Vowell’s position to challenge the Secretary of State’s decision to exclude him from the 4

ballot, the court ruled that the Secretary’s arguments were not properly before it. The Missouri Supreme Court’s decision in Farris is binding on this Court. II. Vowell Preserved Her Constitutional Claims For This Appeal The Secretary has argued that Vowell waived her right to dispute the constitutionality of her exclusion from the ballot, but the Secretary misstated the Missouri Supreme Court’s current standard for evaluating the preservation of a constitutional issue. “To properly raise a constitutional question, one must: (1) raise the constitutional question at the first available opportunity; (2) designate specifically the constitutional provision claimed to have been violated, such as by explicit reference to the article and section or by quotation of the provision itself; (3) state the facts showing the violation; and (4) preserve the question throughout for appellate review.” United C.O.D. v. State, 150 S.W.3d 311, 313 (Mo. banc 2004). The Missouri Supreme Court has further explained that “first available opportunity” means the earliest moment “that good pleading and orderly procedure will admit under the circumstances of the given case.” Callier v. Director of Revenue, 780 S.W.2d 639, 641 (Mo. banc 1989). “The critical question in determining whether waiver occurs is whether the party affected had a reasonable opportunity to raise the unconstitutional act or statute by timely asserting the claim before a court of law.” State ex rel. York v. Daugherty, 969 S.W.2d 223, 225 (1998). Vowell’s initial pleading in this case was her Petition, Paragraph 36 of which read as follows: “If the Secretary of State issues a list of candidates certified to appear on the August 2014 primary election ballot without including Vowell’s name on 5

that list, the Secretary of State would unlawfully deny Vowell her right to run for political office (guaranteed by Article I, section 25 of the Missouri Constitution), her right to due process (guaranteed by the Fourteenth Amendment to the U.S. Constitution and Article I, section 10 of the Missouri Constitution,) and the Secretary of State would also be unconstitutionally penalizing Vowell for her expressive decision to protest a political system she believed to be broken by refraining from registering to vote (guaranteed by the First Amendment to the U.S. Constitution and Article I, section 8 of the Missouri Constitution).” [LF at 10-11]. It is impossible for a party to raise a constitutional issue prior to filing one’s initial pleading. By alleging that the Secretary’s decision to exclude Vowell from the ballot would violate her constitutional rights, Vowell satisfied the first requirement for preserving her challenge. The second requirement for preserving a constitutional challenge is to designate specifically the constitutional provision claimed to have been violated. Vowell plainly did this, identifying the First and Fourteenth Amendments as constitutional provisions implicated by the Secretary’s action.2 The third requirement is to state the facts

The test requires the party bringing a constitutional challenge to identify the

constitutional provision allegedly violated; no additional detail is required in that regard. The freedom of speech Vowell has asserted is protected by the First Amendment; both the Due Process Clause and the Equal Protection Clause are encompassed in the 6

showing the violation. Vowell’s Petition stated that she chose not to register to vote because of her frustration with the political status quo and her belief that “the system was so dominated by entrenched interests and stacked against ordinary citizens that voting was just a waste of time.” [LF at 5]. She then alleged that denying her access to the ballot would be “unconstitutionally penalizing Vowell for her expressive decision to protest a political system she believed to be broken by refraining from registering to vote.” This is the heart of the constitutional challenge she has preserved. The final requirement is for the party to continue asserting her constitutional challenge throughout for appellate review. Vowell identified her constitutional challenge as the primary basis for her appeal and she thoroughly argued the matter in her initial brief. [LF at 25]. She has satisfied every point necessary to preserve this constitutional issue. If there remains any doubt that Vowell preserved her constitutional claims, this Court should also consider the unusual and extreme circumstances of this case. The Secretary’s belated, unauthorized attack on her qualifications took Vowell completely by surprise. She reacted by filing this lawsuit as quickly as she could. Less than 72 hours after filing her Petition, at a hearing that was scheduled to deal only with Vowell’s Motion for a

Fourteenth Amendment. The Fourteenth Amendment’s guarantee of substantive due process is the mechanism through which the U.S. Constitution’s guarantees of the freedom to travel and freedom of speech are applied against the states. Vowell accurately and adequately identified the constitutional provisions at issue. 7

Temporary Restraining Order, the Secretary immediately argued that she had waived her constitutional arguments. Vowell insisted that she had preserved her constitutional challenges and asked for an opportunity to amend her pleadings if that was unclear. The trial judge did not afford her that opportunity, nor did he accept her offer to brief the issues before he ruled against her without addressing her constitutional arguments. With time to save her candidacy rapidly slipping away, Vowell had no choice but to immediately appeal the trial court’s decision rather than seek reconsideration or a new trial. Under these unique circumstances, Vowell did everything that reasonably could have been expected to preserve the constitutional issues now before the Court. To hold otherwise would be manifestly unjust. III. The Secretary Misstated The Factual Record And Its Implication For Vowell’s First Amendment Argument The Secretary claims that there is “no evidence” before the Court that differentiates Vowell’s protest against the political status quo from others who decided not to register to vote. To the contrary, Vowell’s Petition, which included her sworn statement affirming the truth of its factual assertions, [LF at 12], plainly stated that her choice not to register to vote until July 2013 was an expressive act protesting a political system she believed to be “so dominated by entrenched interests and stacked against ordinary citizens that voting was just a waste of time.” [LF at 5.] The Secretary did not deny this point before the trial court, and in agreeing to move forward as if a motion for judgment on the pleadings had been filed the Secretary waived any right to dispute the truth of the matter. For the purposes of this case it is an established fact that Vowell’s choice not to register to vote before July 8

2013 (even though she was qualified to do so) was an expressive act protesting her frustration with the political status quo, “a system so dominated by entrenched interests and stacked against ordinary citizens that voting was just a waste of time.” The Secretary also contends (without any citation or substantive argument) that Vowell’s protest offers “no valid or realistic First Amendment claim.” But the U.S. Supreme Court has long held that the First Amendment is implicated when government conditions citizens’ participation in the political process on their willingness to cease engaging in constitutionally protected activity. In McDaniel v. Paty, 435 U.S. 618 (1978), the U.S. Supreme Court considered a provision of the Tennessee Constitution that prohibited anyone engaged in full-time religious ministry from serving as a legislator.3 A political opponent relied on this provision to challenge a Baptist minister’s qualifications to serve as a delegate to the state’s constitutional convention, and the Tennessee Supreme Court ruled that the minister was, indeed, disqualified unless he relinquished his position as a minister. Id. at 621. Although the U.S. Supreme Court determined that the challenged restriction was “directed primarily at status, acts, and conduct,” and not to matters of belief or the sort of preaching or proselytizing that might be undertaken by lay persons, the court applied strict scrutiny to Tennessee’s restriction because “condition[ing] the availability of benefits, including access to the ballot, upon this appellant's willingness to… surrender[]

The court noted that this practice had originated in England and was carried over or

adopted by more than a dozen states after the American Revolution. Id. at 622-25. 9

his religiously impelled ministry effectively penalizes the free exercise of his constitutional liberties.” Id. at 626. Tennessee was unable to advance a justification for this restriction sufficient to overcome the minister’s right to hold elective office. Similarly, in Buckley v. American Constitutional Law Foundation, Inc., 525 U.S. 182 (1999), the U.S. Supreme Court considered a First Amendment challenge to a Colorado law that imposed a range of restrictions on people who wanted to circulate initiative petitions. Among the challenged restrictions was a requirement that petition circulators must be registered voters.4 Colorado acknowledged that the restriction burdened speech, but argued that the burden was very light because “it is exceptionally easy to register to vote.” Id. at 195. But Justice Ginsburg, writing for the majority, noted that “the ease of registration misses the point” because “the choice not to register implicates political thought and expression” in that for some would-be circulators the refusal to register is a form of protest “because they don’t believe that the political process is responsive to their needs.” Id. at 195-96. The Court struck down the simple voter registration requirement

This was a simple voter registration requirement, rather than a durational requirement.

Although a simple registration requirement still burdens the First Amendment rights of those who protest the political system by refusing to register to vote, it is more easily satisfied than a durational requirement. Because a durational requirement creates a much greater burden on one protesting the political system, the government must do much more to justify the burden created by a durational registration requirement. 10

because the government had not shown that its interest in imposing the requirement justified the burden on citizens’ constitutional rights, particularly when another, lessburdensome requirement was adequate to serve the government’s asserted purpose. Id. at 197. The record demonstrates that Vowell’s choice not to register to vote before July 2013 (even though she was otherwise qualified to do so) was intended to communicate her frustration with the political status quo, and that the durational voter registration requirement directly penalizes her as a result of her protest. U.S. Supreme Court precedent demonstrates that citizens present a valid claim under the First Amendment when they show that a state has restricted their ability to participate in the political process as a consequence of exercising rights protected by the First Amendment.

IV. The Secretary Misunderstands The Analytical Framework Required For This Case The Secretary complains that Vowell did not engage in separate analyses of her Due Process, Equal Protection, and Free Speech claims. He can only make this claim by ignoring that the U.S. Supreme Court has for more than thirty years required courts addressing restrictions on citizens’ participation in the political process to analyze the overall impact of those restrictions on the citizens’ constitutional rights, rather than attempting to assess each constitutional issue independently. See Crawford v. Marion County Election Board, 553 U.S. 181 (2008); Washington State Grange v. Washington State Republican Party, 552 U.S. 442 (2008); Buckley v. American Constitutional Law Foundation, Inc., 525 U.S. 182 (1999); Timmons v. Twin Cities Area New Party, 520 U.S. 11

351 (1997); Burdick v. Takushi, 504 U.S. 428 (1992); Norman v. Reed, 502 U.S. 279 (1992); Eu v. San Francisco County Democratic Central Committee, 489 U.S. 214 (1989); Anderson v. Celebrezze, 460 U.S. 780 (1983). In Celebrezze, the U.S. Supreme Court observed that these election-related cases involve an array of overlapping constitutional rights (or “interwoven strands of liberty”) protected under the First and Fourteenth Amendments, which do not lend themselves to the separate assessment the Secretary proposed.5 Id. at 786-88. Instead, as Vowell explained in her initial brief, asserted violations of the First and Fourteenth Amendment are taken together and the degree of judicial scrutiny applied depends upon whether the government demonstrates that the restriction on the citizens’ rights is justifiable in light of the government interest asserted. Id. at 789. And when, as in the instant case, a restriction severely penalizes or inhibits an individual’s ability to run for a desired office, courts must apply heightened scrutiny. Lubin v. Panish, 415 U.S. 709, 716 (1974) (in ballot access cases, state interest “must be achieved by a means that does not unfairly or unnecessarily burden… an individual candidate’s equally important interest in the continued availability of political opportunity.) The Secretary’s brief also mistakenly argues that the Missouri Supreme Court’s decision to uphold a one-year durational residency requirement in State ex rel. Gralike v.

The Secretary cited a number of cases addressing Due Process or Equal Protection

challenges that did not deal with restrictions on citizens’ participation in the political process. These have no usefulness in the context of the analysis required by Celebrezze. 12

Walsh, 483 S.W.2d 70 (Mo. banc 1972), should control the outcome of this case. As Vowell pointed out in regard to State ex rel. Burke v. Campbell, 542 S.W.2d 355 (Mo. App. E.D. 1976), Vowell makes constitutional arguments that were not addressed in Gralike or Burke, and the intervening four decades’ worth of caselaw has clarified the proper application of the First and Fourteenth Amendments to states’ restrictions on citizens’ participation in the political process. Vowell takes no position as to whether applying the Celebrezze standard to the facts of Gralike would invalidate Missouri’s one-year durational residency requirement for those who would serve in the state legislature, because that issue is not before the Court in the instant case. She does contend, however, that were someone to present a similar challenge today under the First and Fourteenth Amendments, controlling U.S. Supreme Court precedent would require Missouri courts to apply the Celebrezze standard rather than simply upholding the durational residency requirement in light of Gralike. And, as Vowell demonstrated in her initial brief, the durational voter registration requirement she is challenging in the instant case cannot survive the level of scrutiny demanded by the Celebrezze standard. Furthermore, if the Court deems that Missouri Supreme Court rulings should control its analysis of this case, the Missouri Supreme Court’s decision in Labor’s Educational and Political Club-Independent v. Danforth, 561 S.W.2d 339 (Mo. banc 1977), is the applicable precedent. The Danforth Court applied the First and Fourteenth amendments to strike down several restrictions on citizens’ right to participate in the political process. In deciding that case the Missouri Supreme Court held that “a law denying the right to run for office based on the particular office sought… requires strict scrutiny” and also that strict 13

scrutiny was required because a “limitation on the right to run for public office has a real and appreciable impact on the right to vote by denying the electorate of a possible candidate for an appreciable period of time[, and] it infringes on the candidate’s freedoms of expression and association[.]” Id. at 348. As Vowell has noted, the durational voter registration requirement challenged in this case imposes a penalty on her because of her exercise of First Amendment rights. The government is applying this provision block her from seeking office in the General Assembly, and if this restriction is not struck down the penalty against Vowell will continue until at least July 2015, two years after she ended her protest by registering to vote.6 But Missouri does not impose a durational voter registration requirement for all public offices – in fact, there is no durational voter registration requirement for any of the statewide executive offices, including Secretary of State.7 So even though Vowell might be currently

If Vowell decides to renew her protest against the political status quo by withdrawing or

canceling her voter registration, the penalty clock would reset and she would be prohibited from serving in the legislature until she once again registered to vote and an additional two years had elapsed. 7

Several executive officers do have a durational residency requirement, although the

Eighth Circuit held that the durational residency requirement violated the Fourteenth Amendment, at least as applied to the office of State Auditor. Antonio v. Kirkpatrick, 14

prohibited from serving in the state legislature, she would be permitted to run for and serve in other public offices. In other words, the durational voter registration requirement “denies the right to run for office based on the office sought,” and in Danforth the Missouri Supreme Court held that the Fourteenth Amendment requires such a restriction to be subjected to strict scrutiny, under which the restriction will only be preserved if the government demonstrates it is necessary to achieve a “compelling interest.” Id. Thus, whether this Court employs the Celebrezze standard required by the U.S. Supreme Court or applies the standard of review the Missouri Supreme Court announced in Danforth, the result is that the Secretary can only prevail in regard to Vowell’s constitutional challenge if he asserts a compelling state interest served by the durational voter registration requirement and shows that it is the least restrictive means of accomplishing that interest. V. The Secretary Failed To Address Any Durational Voter Registration Cases Vowell has identified six decisions from federal courts and other states’ supreme courts dealing with the precise constitutional issue raised in this litigation – whether the government may prohibit a citizen from participating in the political process unless they have been registered to vote for a set period of time prior to their election. See Buckley v. American Constitutional Law Foundation, Inc., 525 U.S. 182 (1999) (striking down simple voter registration requirement for signature gatherers); Opinion of the Justices, 554 A.2d

579 F.2d 1147 (8th Cir. 1978). A residency requirement is less burdensome than a voter registration requirement. 15

466 (N.H. 1989) (striking down durational registration requirement for notaries public); Bd. of Supervisors of Elections of Prince George’s County v. Goodsell, 396 A.2d 1033 (Md. 1979) (striking down durational registration requirement for county executive); Treiman v. Malmquist, 342 So.2d 972 (Fla. 1977) (striking down durational registration requirement for judges); Henderson v. Ft. Worth Independent School Dist., 526 F.2d 286 (5th Cir. 1976) (striking down durational registration requirement for school board members); Gangemi v. Rosengard, 207 A.2d 665 (N.J. 1965) (striking down durational registration requirement for mayor). With the exception of the U.S. Supreme Court’s decision in Buckley, those cases are not binding on this Court, but their reasoning should help this Court understand the proper way to think about and analyze Vowell’s constitutional claims. Tellingly, every single one of these cases resulted in the court striking down the durational residency requirements as unconstitutional. Rather than engaging in the conversation these courts have been having about the precise constitutional issue presented, however, the Secretary attempted to distract the Court from those cases by packing his brief with citations to cases that have (at best) a tangential relationship to the specific constitutional issue Vowell has raised. This Court should not be misled. A durational voter registration requirement creates a different, more substantial, and less justifiable burden on First and Fourteenth Amendment freedoms than requirements that focus on a candidate’s durational residency, citizenship, or age. Due to this more substantial burden, the Secretary can only preserve the durational voter registration requirement by clearly demonstrating why the burden it imposes on constitutional rights is justified. But the Secretary has not offered any argument sufficient 16

to justify this restriction. Missouri has no legitimate interest (much less the required compelling interest) in imposing a two-year penalty on those who, like Vowell, once chose not to register to vote as a form of political protest. Neither does Missouri have any legitimate interest (much less the required compelling interest) in preventing voters from choosing another registered voter to represent them in the legislature, simply because the candidate has only been a registered voter for sixteen months, rather than twenty-four months. This Court should rule that the durational voter registration requirement in Article III, section 4 of the Missouri Constitution violates the First and Fourteenth Amendments to the U.S. Constitution. CONCLUSION Vowell respectfully asks this Court to rule in her favor and to order her name to be immediately added to the August primary election ballot.

Respectfully submitted,

_______________________________ David E. Roland Missouri Bar No. 60548 14779 Audrain Co. Rd. 815 Mexico, Missouri 65265 Phone:(314) 604-6621 Fax: (314) 720-0989 Email: libertyandjustice@gmail.com Attorney for Petitioner-Appellant

RULE 84.06(c) CERTIFICATION AND CERTIFICATE OF SERVICE I hereby certify that this brief complies with the type-volume limitation of Rule 84.06(b) of the Missouri Rules of Civil Procedure. It was prepared in Microsoft Word 2013 and contains no more than 4,258 words, excluding those portions of the brief listed in Rule 84.06(b). The font is Times New Roman, double-spacing, 13-point type. I hereby certify that I electronically filed a true and correct copy of the foregoing with the Clerk of the Missouri Court of Appeals, Western District, via email and by using the Electronic Filing System, and that a copy will be served by the Electronic Filing System upon those parties indicated by the Electronic Filing System, including: James R. Layton Jonathan M. Hensley Attorney Generalâ&#x20AC;&#x2122;s Office Supreme Court Building P.O. Box 899 Jefferson City, Missouri 65102 James.Layton@ago.mo.gov Jonathan.Hensley@ago.mo.gov

Anthony E. Rothert Grant R. Doty ACLU of Missouri Foundation 454 Whittier Street St. Louis, Missouri 63108 trothert@aclu-mo.org gdoty@aclu-mo.org Attorneys for Amici Curiae

Attorneys for Respondent

Respectfully submitted,

____________________________________ David E. Roland Attorney for Petitioner-Appellant