Missouri voter ID law is the latest in national test cases

JEFFERSON CITY, Mo. -- In court, unlike in coin-flipping or some sporting events, there is no "best two-out-of-three" option to determine the ultimate winner of a contest that at first goes one way and then another.

But in some sense, that is what is occurring beginning today in a Missouri courtroom just a few blocks from the Capitol.

Cole County Circuit Judge Richard Callahan is hearing arguments on a challenge to a new Missouri law requiring voters to show photo identification to cast ballots. The law is among the first nationally in a still relatively young movement -- one intended to prevent voter fraud, as supporters tell it; or to suppress certain voters, as opponents claim.

A federal judge in Indiana upheld that state's voter photo ID law in April. But in Georgia last month, a state and federal judge each issued orders blocking that state's law.

The Missouri decision will swing the pendulum one way or the other -- forming a symbolic two-out-of-three-states consensus (at least temporarily, since appeals could reverse the trial court decisions in any one of those states).

Depending on which lawyer you consult, Missouri's photo ID requirement is either more stringent or more lenient than the others -- making it either more likely to get struck down or upheld.

The basic thrust of Missouri's law is the same as those in Indiana and Georgia: To vote, people must show a government-issued photo identification like a driver's license or passport. If they don't have one, they can get a state photo ID card for free. And if they still don't have a photo ID on Election Day, they may cast a provisional ballot that can be counted later if their identifies are verified.

But there are differences within the details of the states' laws.

For example, the Indiana law is not specific on how the free photo ID cards are to be distributed. The Georgia law requires each county to have at least one place where it will issue the cards. The Missouri law goes further, requiring that photo ID cards be made available not only through license offices but also through nine mobile processing units that can be dispatched to nursing homes and other places "frequented by disabled and elderly persons."

But to get a free ID, Missourians must comply with a separate state law requiring them to prove their "lawful presence" in the United States. For most people, that means showing a birth certificate. Those who can't find it must get a replacement.

Missouri charges $15 for a birth certificate. The lawsuit claims that amounts to an illegal poll tax.

Poll tax arguments also were raised in Indiana and Georgia.

The Indiana court said the plaintiffs failed to show they would actually have to buy a new birth certificate and noted it was just one of several options for getting a photo ID there. It said the cost of getting a birth certificate did not constitute a poll tax because it was not "sufficiently tied to the requirements of voting." Nor can the costs of time and transportation to get a photo ID be considered a poll tax, the Indiana court said.

The Georgia court cited the Indiana ruling while also determining the poll tax argument lacked "a substantial likelihood of success." It, too, noted that a birth certificate was only one of many documents that could be used while getting a photo ID card in Georgia.

In contrast, "in Missouri, there's absolutely no other way. If you don't have identification, you're going to have to pay money either for a birth certificate or a passport," said Don Downing, a St. Louis attorney handling the lawsuit.

The states' laws also differ when it comes to counting the provisional ballots of people who still lack a photo ID on Election Day.

Georgia gives those people 48 hours to get a photo identification. The judge there said it was highly unlikely people could meet that deadline, adding that many people would therefore not even bother to try to cast a provisional ballot.

The Indiana law allows provisional ballots to count if voters later swear to local election officials that they were too poor to obtain identification or have religious objections to being photographed. But the court noted that the Indiana plaintiffs also qualified to vote absentee under that state's law because they were older than 65 -- a reasonable alternative for which no photo identification is required.

Missouri's absentee voting laws are not as wide open. But the new photo ID law makes various allowances for casting provisional ballots.

For example, Missourians who lack photo ID but are at least age 65, disabled or have a religious objection to photo identification automatically can cast a provisional ballot, which will be counted so long as their signatures match those on file and they sign affidavits attesting to their identity and their inability to obtain a photo ID.

Until November 2008, any voter also can cast a provisional ballot by showing one of the various non-photo IDs allowed under Missouri's previous law.

St. Louis attorney Thor Hearne, who on Friday sought to join the law's defense on behalf of its legislative sponsor, said the type of ballots people cast -- regular, provisional or absentee -- doesn't really matter, since all can be counted.

"That's a distinction that's about as meaningful as if I walk to the poll or drive my '56 Buick to the poll," Hearne said. "The whole issue is did I have a chance to vote for candidates on a ballot that is counted?"

But Downing argues there are differences. Past history shows that provisional ballots don't always count, and he says the elderly and disabled may have more difficulty meeting the signature matching requirements.

As part of his court presentation, Downing is preparing charts illustrating the various similarities and differences among the Missouri, Indiana and Georgia laws.

Court watchers, meanwhile, will be charting the outcome while tracking the fate of the nation's newest photo ID laws.

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EDITOR'S NOTE: Capitol Correspondent David A. Lieb covers Missouri government and politics for The Associated Press.