Cole County Senior Judge Richard Callahan told lawyers Thursday afternoon he'll hold a trial Sept. 24 on the lawsuit challenging Missouri's new voter photo ID law.
"We will work late to have that trial done in three days," he said during a status hearing with the attorneys for the state and the plaintiffs. "I would have a full record and the discovery in this matter so that whoever needs it can seek appellate review."
Callahan also said he'll allow the plaintiffs — currently a Washington, D.C.-based group called Priorities USA and a Lee's Summit woman, Mildred Gutierrez — to file an amended lawsuit that will, in the words of their motion asking to file the new pleadings, "add additional plaintiffs (and) update the allegations in the Petition based on further factual development."
The original lawsuit, filed two months ago, said Missouri's new voter photo ID requirement is unconstitutional and should be prohibited at all future elections.
"The Missouri Constitution guarantees that 'all elections shall be free and open; and no power, civil or military, shall at any time interfere to prevent the free exercise of the right of suffrage,'" the lawsuit began, citing the Constitution's Article I, Section 25.
"The Constitution also clearly defines voter qualifications," the lawsuit said: "'All citizens of the United States, including occupants of soldiers' and sailors' homes, over the age of eighteen who are residents of this state and of the political subdivision in which they offer to vote are entitled to vote at all elections by the people '
"In other words, by its plain terms, the Missouri Constitution creates a plain and positive right to vote for all Missouri residents who meet the qualifications established by Article VIII, Section 2."
Twelve years ago, Callahan ruled — in the case known as Weinschenk v. Carnahan — the state's then-new voter ID law, passed by the Legislature in 2006, was unconstitutional, saying it unnecessarily burdened the right to vote of Missourians who were properly registered but were, nonetheless, barred from voting because they didn't have one of the identifying documents required by the 2006 law.
The Missouri Supreme Court agreed, ruling in October 2006 the law's "Photo-ID Requirement violates Missouri's equal protection clause and Missouri's constitutional guarantee of the right of its qualified, registered citizens to vote."
Frank Jung, an attorney representing Secretary of State Jay Ashcroft, told Callahan on Wednesday the new case "is nothing like the Weinschenk case," because Missouri voters in November 2016 approved a constitutional amendment saying voters "have to have a voter ID" when they go to the polls.
But that's not what voters approved, Uzoma Nkwonta, one of the Washington lawyers representing Priorities USA in the case, told the judge.
"The amendment says the General Assembly 'may' require individuals to have to show an ID," Nkwonta said, before Callahan stopped him.
"I don't want to get into the legal argument so much as the scheduling issues" during Wednesday's hearing, the judge said.
The lawsuit argued, while giving lawmakers permission to add a photo ID requirement for voters going to the polls on Election Day, Missouri voters in 2016 didn't change the existing constitutional language that properly registered voters are entitled to vote.
Jung said the defendants needed about five weeks to take depositions, as part of the discovery process, to counter the lawsuit's arguments the new law allowed by the 2016 amendment creates burdensome regulations for voters.
"They presented affidavits that are hearsay," Jung told Callahan. "We have a right to depose those individuals."
But, Nkwonta countered, "The state has not identified what discovery is pertinent."
He said the original lawsuit already showed "the scope of the burden," that everyone who doesn't have one of the forms of ID approved by the law is "approximately 220,000 Missourians (who) lack a government-issued ID."
The lawsuit seeks both a preliminary and permanent injunction against the state's enforcing the new law.
Jung told Callahan a preliminary injunction only would affect the secretary of state's office and not the county clerks in most of Missouri's 114 counties, and the Election Boards in the St. Louis and Kansas City areas.
"Our office has no control over the local election authorities," Jung said.
However, he said, "A permanent injunction would do that," because it would block use of the law.
Callahan said whichever side loses after the September hearing could file their post-trial briefs with the appeals court within 24-36 hours after the trial, so he thought the late-September date would be enough time to deal with the issue before the Nov. 6 general election.