UNITED STATES DISTRICT COURT FOR THE WESTERN DISTRICT OF MISSOURI
CENTRAL DIVISION

STEVEN M. PRYE, individually and by his

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guardian, OFFICE OF STATE GUARDIAN,

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Plaintiffs,

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v.

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MATT BLUNT, in his official capacity as Secretary of )

State ofthe State of Missouri; JEREMIAH W.

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(JAY) NIXON, in his official capacity

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as Attorney General ofthe State of Missouri;

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LEO G. (GARY) STOFF, JR. and

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JAMES P. O'TOOLE, in their capacity as directors)

of the Board ofElections for the City ofSt. Louis; )

MICHAEL A. LUEKEN, in his capacity as

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secretary and member of the Board of Elect ions )

for the City ofSt. Louis; DERIO L. GAMBARO, )

in his capacity as chairman of the Board of

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Elections for the City ofSt. Louis; ANGELA

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DA SILVA and YVONNE B. HUNTER, in their )

capacity as members ofthe Board ofElections for )

the City of St. Louis; and BOARD OF ELECTION )

COMMISSIONERS FOR THE CITY OF

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ST. LOUIS,

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Defendants.

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()Lf- ,yd~r?-CV-~ -Qb5
Civil Action No.:
Complaint
Injunctive Relief Sought

INTRODUCTION 1. The Missouri Constitution prohibits from voting any individual who has "a

guardian of his or her estate or person by reason of mental incapacity[] appointed

by a court of competent jurisdiction." Mo. Const. Art. 8, § 2. By statute,

Missouri restricts any person who has been "adjudged incapacitated" from

registering to vote and from voting. V.A.M.S. 115.133.

2. Plaintiff Steven M. Prye (Prye) has been adjudged incapacitated and appointed a

guardian of his person and estate because of mental incapacity. Prye would like

to vote in the upcoming general election and in future elections; consequently, he

seeks a judgment declaring that the prohibition on registering to vote or voting violates the Due Process Clause of the Fourteenth Amendment to the Constitution ofthe United States, the Equal Protection Clause ofthe Fourteenth Amendment to the Constitution of the United States, the Americans with Disabilities Act, and section 504 ofthe Rehabilitation Act of 1973. Prye also seeks a preliminary and permanent injunction enjoining Defendants from disenfranchising him from his fundamental right to vote on the ground that he has been adjudged incapacitated and appointed guardian of his estate or person by reason of mental incapacity.
JURISDICTION AND VENUE 3. This Court has subject matter jurisdiction over this action pursuant to 28 U.S.C.
§§1331,1343(a)(4). 4. Venue is proper in this Court under 28 U.S.C. §1391(b) and Local Rule 3.2(a)(2).
The primary offices of Defendants Blunt and Nixon, from which they implement the challenged provisions of Missouri law, are located in Cole County.
PARTIES 5. Prye brings this action individually and by his guardian, Plaintiff Office of State
Guardian. Prye has been diagnosed with a mental illness, adjudged incapacitated, and appointed a guardian as a result of mental illness. Prye is substantially limited in the major life activities of self-care, taking care of his personal needs (e.g., eating, dressing, bathing, hygiene, household chores, managing money), and interactions with others. The record ofPrye's substantial limitation in major life activities extends back at least three years.
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6. Defendant Matt Blunt is the Secretary of State ofthe State of Missouri. As Secretary of State, Defendant Blunt is responsible for such duties in relation to elections as the law provides. Mo. Const. Art. 4, § 14. He is the state's chief election official. See V.A.M.S. 28.035; V.A.M.S. 115.136. Defendant Blunt is also required to notify local election authorities of persons within their respective jurisdictions who have been adjudged incapacitated. V.A.M.S. 115.195(3). Defendant Blunt has the responsibility to oversee the administration of elections in Missouri. Defendant Blunt's primary office is located in Jefferson, Missouri.
7. Defendant Jeremiah W. (Jay) Nixon is the Attorney General ofthe State of Missouri. Defendant Nixon is charged with instituting proceedings to enforce Art. 8, § 2 ofthe Missouri Constitution and statutes that disenfranchise persons who have been adjudged incapacitated and appointed a guardian. See V.A.M.S. 27.060. Defendant Nixon's primary office is located in Jefferson City, Missouri.
8. Defendants Leo G. (Gary) Stoff, Jr., and James P. O'Toole are directors ofthe Defendant Board of Election Commissioners for the City of St. Louis. Defendant Michael A. Lueken is secretary and member of Defendant Board of Election Commissioners for the City of St. Louis. Defendant Derio L. Gambaro is chairman of Defendant Board of Election Commissioners for the City ofSt. Louis. Defendants Angela da Silva and Yvonne B. Hunter are members of Defendant Board of Election Commissioners for the City ofSt. Louis. Defendant Board of Election Commissioners for the City ofSt. Louis is the election authority for St. Louis City. V.A.M.S. 115.015. By statute, the election authority
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is required to supervise the registration of voters within its jurisdiction and insure persons are qualified to register. V.A.M.S. 115.141.
MISSOURI CONSTITUTION AND STATUTES 9. The Missouri Constitution states, inter alia., "[N]o person who has a guardian of
his or her estate or person by reason of mental incapacity[] appointed by a court of competent jurisdiction ... shall be entitled to vote." Mo. Const. Art. 8, § 2. 10. By statute, the State of Missouri prohibits any persons who have been adjudged incapacitated by a court from registering to vote or voting. V.A.M.S. 115.133. 11. Persons under guardianship, and persons who assist them, may be subject to criminal charges for casting or encouraging an illegal vote. V.A.M.S.115.175; V.A.M.S. 115.631. A class one election offense is a felony punishable "by imprisonment of not more than five years or by fine ofnot less than two thousand five hundred dollars but not more than ten thousand dollars or by both such imprisonment and fine[.]" V.A.M.S. 115.631. What is more, the State of Missouri permanently declares persons convicted of a misdemeanor or felony related to the right of suffrage ineligible to register to vote or vote. V.A.M.S. 115.133(3).
FACTS 12. PlaintiffPrye was born on November 13, 1952, in Memphis, Tennessee. He was
one of the first black students to attend Central High School, the city's best high school, during desegregation. He was at school on April 4, 1968 when-about a mile away-- Martin Luther King, Jr., was killed at the Lorraine Motel. Other students and some teachers celebrated. This event, amongst others, convinced
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Prye that he would do whatever it took to overcome disadvantage and discrimination. Upon graduating from high school, Prye received a scholarship from Yale University and completed his undergraduate studies in New Haven. After college Prye attended law school at Harvard, where he was on the staffof the Public Law Review. Prye began his legal career by working for two fIrms in New York City. He sometimes taught legal writing courses at New York University, and he was awarded an L.L.M. in taxation by N.Y.U. Prye left New York City because he wanted to teach fulltime. He taught several years at the Vermont Law School, then at the University of Illinois School of Law. During several ofthese years, Prye wrote a regular column in the Memphis newspaper on estate planning and related issues, including guardianship. It was at the University of Illinois and around age 49 that Prye's condition deteriorated. He is now diagnosed with schizoaffective disorder. On December 12,2003, Office of State Guardian was appointed as guardian ofPrye's person by the Circuit Court of Sangamon County, Illinois. The same Court appointed Office of State Guardian as guardian ofPrye's estate on March 11,2004. Since April 2004, Prye has resided in St. Louis, Missouri. There is currently pending a petition for appointment of a guardian in the Missouri Circuit Court, Twenty-second Judicial Circuit, Probate Division, in St. Louis. 13. The Circuit Court of Sangamon County, Illinois, appointed a guardian without limitation and did not consider Prye's competence to vote. Illinois law does not disenfranchise its residents simply because they have been appointed a guardian. 10 ILCS 5/3-1 (qualifIcations to vote in Illinois); see Miller v. State Board of
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Elections, 1989 WL 36212 (N.D.lll. 1989) (discussion of fact that mental incapacity is not a disqualification for voting under Illinois law). 14. The Circuit Court in St. Louis, in considering the case pending before it, is not authorized by Missouri law to consider Prye's capacity to vote or to reserve to him the right to vote in the event a guardian is appointed. The Court will adjudge Prye incapacitated and appoint a guardian if it finds Prye is a person who is unable by reason ofany physical or mental condition to receive and evaluate information or to communicate decisions to such an extent that he or she lacks capacity to meet essential requirements for food, clothing, shelter, safety, or other care such that serious physical injury, illness, or disease is likely to occur. See V.A.M.S. 475.010, et seq. The determinations the Court is required to make have no bearing on or relation to the capacity to vote. 15. Prye is interested in politics. He has regularly voted in the past. He understands the nature of the political process and is competent to vote. He only learned that he was ineligible to vote in Missouri when he recently sought to register to vote. 16. Prye meets all ofthe qualifications to vote in the State of Missouri except that he has been adjudged incapacitated and appointed a guardian. Mo. Const. Art. 8, § 2; V.A.M.S. 115.133. The sole reason he is ineligible to register to vote and vote in Missouri is that he is under guardianship. 17. On September 24, 2004, Prye attempted to register to vote in the State ofMissouri by completing a Missouri Voter Registration Application. In order to make his application truthful, Prye struck the assertion contained on the form application that he had not been adjudged incapacitated. Defendant Stoff, on behalf of
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Defendant St. Louis Board of Election Commissioners, denied Prye's application on the sole basis that Prye had been adjudged mentally incapacitated.
COUNT! Violation ofDue Process Clause 18. Plaintiffs repeat and re-allege each and every allegation in paragraphs 1 through 17 as if fully incorporated herein. 19. The Missouri Constitution and statutes deny Plaintiff Prye due process in violation ofthe Fourteenth Amendment to the Constitution ofthe United States by disenfranchising him without a process to determine his capacity to vote. 20. Missouri's guardianship statutes do not provide due process because they provide neither notice nor the opportunity to be heard on the issue of voting. Further, Missouri deprives its residents ofthe right to vote based on guardianship proceedings of other states without regard for whether those states' guardianship proceedings consider the individual's capacity to vote. 21. Because the right to vote is a fundamental right and, thus, a fundamental liberty interest, Missouri's statutes do not apply the appropriate burden of proof in guardianship proceedings to consider infringing upon an individual's right to register and vote. 22. Because the fundamental right to vote is implicated, the Missouri Constitution and statutes that disenfranchise individuals who have been appointed a guardian should be reviewed under the strict scrutiny standard. 23. Prye is entitled to injunctive and declaratory relief because he is injured by Defendants' acts that deprive him ofthe right to vote in violation of the Due
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Process Clause ofthe Fourteenth Amendment. His claim is brought pursuant to 42 U.S.C. § 1983.
COUNT II Violation ofEqual Protection Clause 24. Plaintiffs repeat and re-allege each and every allegation in paragraphs 1 through 17 as if fully incorporated herein. 25. The Equal Protection Clause ofthe Fourteenth Amendment provides, "[N]o state shall deny to any person within its jurisdiction the equal protection ofthe laws."
u.s. Const., amend. XIV.
26. PlaintiffPrye is similarly situated to individuals who have the capacity to vote but who have not been appointed a guardian. Because they have not been appointed a guardian, the individuals retain the fundamental right to vote.
27. Defendants, by their acts and omissions under color of state law, are depriving PlaintiffPrye of rights secured by the Equal Protection Clause ofthe Fourteenth Amendment to the Constitution of the United States by disenfranchising him on the ground that he is under guardianship.
28. Voting is a fundamental right, yet Mo. Const. Art. 8, § 2 and the Missouri statues that disenfranchise Prye are not narrowly tailored to achieve a compelling state interest.
29. Prye is entitled to injunctive and declaratory relief because being denied the right to vote in violation ofthe Equal Protection Clause ofthe Fourteenth Amendment injures him. His claim is brought pursuant to 42 U.S.C. § 1983.
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COUNT III Violation ofAmericans with Disabilities Act 30. Plaintiffs repeat and re-allege each and every allegation in paragraphs 1 through 17 as if fully incorporated herein. 31. Subtitle A ofTitle II of the Americans with Disabilities Act (ADA) prohibits public entities from discriminating against persons with disabilities in their programs, services, and activities. 42 U.S.c. §§ 12131-12134. Regulations implementing subtitle A are codified at 28 C.F.R. part 35. 32. Title II's definition of"pubJic entity" includes any state or local government or "any department, agency ... or other instrumentality" of a state or local government. 42 U.S.C. § 12131(1)(A), (B). 33. Defendants are responsible for the operation of public entities for the purposes of Title II. 34. Prye has a disability within the meaning of 42 U.S.C. § 12102(2) and 28 C.F.R. § 35.104. 35. Prye is a "qualified individual with a disability" within the meaning of 42 U.S.C. § 12131(2) and 28 C.F.R. § 35.104 because he meets all voting eligibility requirements other than the requirement that he not be under guardianship. 36. The State of Missouri is a "public entity" within the meaning of 42 U.S.C. § 12131(1)(A) and 28 C.F.R. § 35.104. 37. Defendants subject Prye to discrimination by excluding him from voting in federal, state, and local elections. The exclusion and discrimination violate 42 u.S.C. § 12132, which states:
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Subject to the provisions ofthis subchapter, no qualified individual with a disability shall, by reason of such disability, be excluded from participation in or be denied the benefits of the services, programs, or activities of a public entity, or be subjected to discrimination by any such entity. 38. Defendants are violating the regulations promulgated under the ADA in the following respects: a. Defendants, on the basis ofPrye's disability, exclude him from participation in federal, state, and local elections, thereby subjecting him to discrimination. See 28 C.F.R. 35. 130(a) (''No qualified individual with a disability shall, on the basis of disability, be excluded from participation in or be denied the benefits of the services, programs, or activities of a public entity, or be subjected to discrimination by any public entity."). b. Defendants, on the basis ofPrye's disability, deny him the opportunity to participate in or benefit from their services, programs, and activities, to wit: voter registration and voting. See 28 C.F.R. 35.130(b)(1)(i)("A public entity, in providing any aid, benefit, or service, may not, directly or through contractual, licensing, or other arrangements, on the basis of disability[,] [d]eny a qualified individual with a disability the opportunity to participate in or benefit from the aid, benefit, or service[.]"). c. Defendants, on the basis ofPrye's disability, to limit him in the enjoyment of his right to vote. See 28 C.F.R. 35. 130(b)(1)(vii)("A public entity, in providing any aid, benefit, or service, may not, directly or through contractual,
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licensing, or other arrangements, on the basis of disability[,] [0]therwise limit a qualified individual with a disability in the enjoyment of any right, privilege, advantage, or opportunity enjoyed by others receiving the aid, benefit, or service.") . d. Defendants utilize criteria for eligibility to register to vote and to vote that have the effect of subjecting Prye to discrimination on the basis of disability. See 38 C.F.R. 35. 130(b)(3)(i) ("A public entity may not, directly or through contractual or other arrangements, utilize criteria or methods of administration [t]hat have the effect of subjecting qualified individuals with disabilities to discrimination on the basis ofdisability[.],,). e. Defendants impose eligibility criteria for voting that screen out or tend to screen out individuals with disabilities, including Prye, from fully and equally enjoying voting and elections even though the criteria are not necessary for voting and elections in Missouri. See 28 C.F.R. 35. 130(b)(8) ("A public entity shall not impose or apply eligibility criteria that screen out or tend to screen out an individual with a disability or any class of individuals with disabilities from fully and equally enjoying any service, program, or activity, unless such criteria can be shown to be necessary for the provision ofthe service, program, or activity being offered."). 39. As a result of Defendants' violations ofthe ADA and its implementing regulations, Defendants are liable to Prye for injunctive and declaratory relief pursuant to 42 U.S.C. § 12133.
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COUNT IV Violation of§504 ofthe Rehabilitation Act of1973 40. Plaintiffs repeat and re-allege each and every allegation in paragraphs 1 through 17 as if fully incorporated herein. 41. Section 504 ofthe Rehabilitation Act of 1973, 29 U.S.c. § 794 (Section 504), provides, inter alia., No otherwise qualified individual with a disability in the United States ... shall, solely by reason of her or his disability, be excluded from the participation in, be denied the benefits of, or be subjected to discrimination under any program or activity receiving Federal financial assistance or under any program or activity conducted by any Executive agency ... 42. Prye is a "qualified individual with a disability" as defined by 29 U.S.c. §705(20). 43. Prye meets all ofthe qualifications to vote in the State of Missouri except for that he has been adjudged incapacitated and appointed a guardian. 44. Defendants receive federal assistance for the purposes of Section 504. 29 U.S.C. § 794(a). 45. Defendants discriminate against Prye by not allowing him to register to vote or to vote although registering to vote and voting fit within the definition of "program or activity" provided by section 504.29 U.S.c. § 794(b)(1)(A). 46. As a result of Defendants' violations of § 504 of the Rehabilitation Act of 1973,
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Defendants are liable to Prye for injunctive and declaratory relief pursuant to 29 U.S.C. §794a.
RELIEF Plaintiffs request judgment in their favor and the following relief:
A. A preliminary and permanent injunction requiring Defendants to register Prye to vote before the November 2, 2004 election and to vote in the November 2, 2004 election and future elections;
B. A declaratory judgment holding that the Missouri Constitution and statutes that disenfranchise Prye on the ground that he is under guardianship or has been adjudged incapacitated are facially invalid because they violate the Due Process Clause of the Fourteenth Amendment, the Equal Protection Clause ofthe Fourteenth Amendment, the Americans with Disabilities Act, and Section 504 ofthe Rehabilitation Act of 1973;
C. Costs and reasonable attorneys fees under 42 U.S.C. §§ 1988, 12133,12205; 29 U.S.c. § 791, et seq., and other relevant provisions of law;
D. Such other and further relief as this Court deems just and proper.
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Dated: October 8, 2004.
Anthony E. R hert, MO Bar #44827 Jeff M. Plesko John Wank GUARDIANSHIP AND ADVOCACY COMMISSION 4500 College Avenue, #100 Alton, IL 62002 (618) 474-5503 (618) 474-5517 (facsimile)
Ira A. Burnim Jennifer Mathis BAZELON CENTER FOR MENTAL HEALTH LAW 1101 15th Street, NW, Suite 1212 Washington, DC 20005 (202) 467-5730 (202) 223-0409 (facsimile)
Neil Bradley ACLU NATIONAL VOTING RIGHTS PROJECT 2725 Harris Tower 233 Peachtree Street NE Atlanta, GA 30303 (404) 523-2721 (404) 653-0331 (facsimile)
Denise D. Lieberman, MBE#47013 AMERICAN CIVIL LIBERTIES UNION
OF EASTERN MISSOURI 4557 Laclede Ave. St. Louis, MO 63108 (314)361-2111 FAX: (314) 361-3135
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 UNITED STATES DISTRICT COURT FOR THE WESTERN DISTRICT OF MISSOURI CENTRAL DIVISION

STEVEN M. PRYE, et al., Plaintiffs,
v. MATT BLUNT, et al.,
Defendants.

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No.: 04-4248-CV-C-ODS

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ORDER DENYING PLAINTIFFS’ MOTION FOR PRELIMINARY INJUNCTION
Pending is Plaintiffs’ Motion for Preliminary Injunction (Doc. # 3). For the following reasons, Plaintiffs’ motion is denied.

I. FINDINGS OF FACT 1. Plaintiffs in this case, Steven M. Prye and his guardian, Office of State Guardian,
have filed a Motion for Preliminary Injunction against Defendants Secretary of State Matt Blunt, Attorney General Jeremiah W. (Jay) Nixon, the Board of Elections for the City of St. Louis, and several of its members, requiring the defendants to register Prye to vote before the November 2, 2004 election, and allowing Prye to vote in the November 2, 2004 election and future elections. 2. On July 1, 2003, a Petition for Adjudication of Disability and Appointment of Guardian for Prye was filed in the Circuit Court for the Seventh Judicial Circuit of Illinois, Sangamon County. 3. On December 12, 2003, the Circuit Court appointed the Office of State Guardian as guardian of Prye because, as a result of his disability, he was unable to dress, bathe, maintain personal hygiene, do household chores, or manage money without assistance. According to the Order Adjudicating Need For and Appointment of Guardian, the Office of State Guardian was to have the powers and duties as

provided by 755 Ill. Comp. Stat. 5/11-1 et seq., and certain enumerated powers. According to an affidavit from Prye’s appointed guardian, Penny Rausch, from the Office of State Guardian, the Illinois Court did not inquire as to whether he had the capacity to vote. 4. On March 11, 2004, the Office of the State Guardian was appointed guardian of Prye’s estate. 5. In April of 2004, Prye was relocated to St. Alexius Hospital in St. Louis, Missouri. 6. St. Alexius Hospital brought a Petition for Appointment of a Guardian for Prye in the 22nd Judicial Circuit of Missouri, Probate Division, City of St. Louis, on September 30, 2004. A hearing on the petition was held on October 19, 2004, and continued until October 29, 2004. 7. Prye attempted to register to vote on September 24, 2004. On his voter registration form, he crossed out the portion of the certification on the application that read: “I have not been adjudged incapacitated by any court of law.” 8. In a letter dated September 28, 2004, the Board of Election Commissioners for the City of St. Louis informed Prye that his voter registration application had been denied because, based on his application, he apparently had been adjudged incapacitated by a court of law. 9. Prye presented affidavits from Luis Giuffra, M.D., Ph.D., Thawn Han, M.D., and Bryce F. Sullivan, Ph.D. All three individuals testified that Prye “has the capacity to vote. He can understand and appreciate what it means to vote.” 10. Defendants presented an affidavit from Dr. Bruce Harry, who reviewed certain records reflecting Prye’s condition, including a psychological evaluation prepared by Dr. Sullivan, additional evaluations prepared by other doctors, and various discharge summaries. Dr. Harry testified that Prye has “markedly impaired capacity for receiving and processing information, understanding and evaluating information received, avoiding the influence of others in his decision-making process. . . and, hence, there is a significant question regarding his competency
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to vote and available information strongly suggest that he lacks such competency.”
II. CONCLUSIONS OF LAW The Missouri Constitution prohibits any individual from voting who has “a guardian of his or her estate or person by reason of mental incapacity, appointed by a court of competent jurisdiction. . . .” Mo. Const. art. 8, § 2. By statute, Missouri restricts any person who has been “adjudicated incapacitated” from registering to vote. Mo. Rev. Stat. § 115.133.2 (2000). An incapacitated person is one: [U]nable by reason of any physical or mental condition to receive and evaluate information or to communicate decisions to such an extent that he lacks capacity to meet essential requirements for food, clothing, shelter, safety or other care such that serious physical injury, illness, or disease is likely to occur.
Mo. Rev. Stat. § 475.010(9). An adjudication of incapacity operates to impose upon the ward or protectee the legal disabilities provided by law. Mo. Rev. Stat. § 475.078.2. Persons adjudicated incapacitated are presumed to be incompetent. § 475.078.3. By contrast, someone who has been adjudicated partially incapacitated or partially disabled or both is presumed competent, and the law imposes no legal disabilities on the person. Id.; § 475.078.1. Judges are to declare an individual fully incapacitated and to appoint a guardian as a last resort. § 475.075.10. Before addressing the Motion for Preliminary Injunction, it is necessary to address the issues of Prye’s residency and whether this Court should abstain in this matter.
A. Prye’s Residency Missouri law permits only Missouri residents to register and vote in Missouri. Mo.
Rev. Stat. § 115.133.1 (Supp. 2003). For purposes of this motion, the Court will assume that Prye is a resident of Missouri.
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B. Abstention Prye is the Respondent in a proceeding for the appointment of a guardian filed in
the City of St. Louis. Allegheny County v. Frank Mashuda Co. authorizes federal courts to postpone the exercise of its jurisdiction when a federal constitutional issue may be mooted by a state court determination of pertinent state law. 360 U.S. 185, 189 (1959). The resolution of the state court proceeding may directly impact Plaintiffs’ federal constitutional claims that are pending in this Court. Nevertheless, the Court concludes that it should not abstain from the resolution of Plaintiffs’ request for a preliminary injunction because the next hearing in the state proceeding is not scheduled to occur until after the deadline by which Prye must request an absentee ballot.
C. Preliminary Injunction The standard for issuing a preliminary injunction involves consideration of the
following factors: (1) the threat of irreparable harm to the movant; (2) the probability that the movant will succeed on the merits; (3) the state of the balance between the plaintiff’s harm and the injury that granting the injunction will inflict on other parties litigant; and (4) the public interest. Dataphase Sys., Inc. v. C L Sys., Inc., 640 F.2d 109, 113 (8th Cir. 1981) (en banc). The burden on the moving party is particularly heavy where granting the motion for preliminary injunction will give him substantially the same relief as he would obtain after a trial on the merits. Sanborn Mfg. Co. v. Campbell Hausfelt/Scott Fetzer Co., 997 F.2d 484, 486 (8th Cir. 1993). Plaintiffs seek a preliminary injunction against Defendants requiring them to register Prye to vote before the November 2, 2004 election, and allowing Prye to vote in the November 2, 2004 election and future elections.
(A) Irreparable Harm to Prye Prye alleges that he is interested in politics, has regularly voted in the past, has voted in every presidential election for which he was eligible, and is interested in and concerned about the upcoming presidential election. Prye, absent this Court’s
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intervention, will be unable to vote in the upcoming election. For purposes of this motion, the Court will assume that Prye faces a threat of irreparable harm.
(B) Probability of Success on the Merits (1) Due Process Claim
The right to vote is a “fundamental political right. . . preservative of all rights.” Reynolds v. Sims, 377 U.S. 533, 562 (1964). When assessing challenges to laws that burden the right to vote, a court must apply the standard set forth in Burdick v. Takushi:
A court considering a challenge to a state election law must weigh the character and magnitude of the asserted injury to the rights protected by the First and Fourteenth Amendments that the plaintiff seeks to vindicate against the precise interests put forward by the State as justifications for the burden imposed by its rule, taking into consideration the extent to which those interests make it necessary to burden the plaintiff’s rights.
504 U.S. 428, 434 (1992) (internal citations and quotations omitted). Missouri is denying Prye the right to register to vote because the State of Illinois
adjudged him mentally incapacitated and appointed him a guardian. In Illinois, such a judgment does not automatically deprive a person of his or her right to vote, but in Missouri it does. Plaintiffs argue that Prye was not given notice or the opportunity to be heard before his right to vote was taken from him in Missouri but does not contend that he was denied due process during the Illinois hearing that established his guardianship or in the pending Missouri guardianship proceeding. This leaves the Court unable to ascertain when Prye was denied due process. Prye insists he should have received notice that the Illinois adjudication would effect his rights in Missouri, but he cannot seriously argue that the Constitution required (1) Illinois to advise him of the affect of its adjudication should he move to Missouri, or (2) Missouri to advise him that the Illinois adjudication would affect his right to vote in Missouri. In other words, Plaintiffs have not
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identified the notice that should have been given or, more importantly, by whom and when it should have been given.
Prye can only challenge Missouri’s recognition of the Illinois adjudication of mental incapacity and application of Missouri’s laws to determine the affect of that adjudication; however, Prye had and still has avenues to pursue limitations on the guardianship. Because existing procedures, if utilized, afforded Prye an opportunity to be heard on the issue of his right to vote, the Court finds that Plaintiff is unlikely to succeed on the merits of this claim. No decision has been rendered in the Missouri proceeding, so a due process challenge to it is not ripe.
(2) ADA and Rehabilitation Act Claims Preliminarily, it should be noted that the ADA and the Rehabilitation Act do not explicitly address the issue of competency requirements for voting in federal, state or local elections.1 Nevertheless, the Court will examine Plaintiffs’ likelihood of success of their claims under the ADA and Rehabilitation Act. Title II of the Americans with Disabilities Act (ADA) provides that “no qualified individual with a disability shall, by reason of such disability, be excluded from participation in or be denied the benefits of the services, programs, or activities of a public entity, or be subjected to discrimination by any such entity.” 42 U.S.C. § 12132. To establish a violation of Title II, an individual must show: (1) he is a qualified individual with a disability; (2) he was excluded from participation in or denied the benefits of a public entity’s services, programs or activities, or was otherwise discriminated against by the entity; and (3) the exclusion, denial or other discrimination was by reason of his disability. Layton v. Elder, 143 F.3d 469, 472 (8th Cir. 1998). Title II’s enforcement remedies, procedures and rights are the same as under section 504. Pottgen v. Mo.
1 In addition, the National Voter Registration Act explicitly provides that a state may remove a voter’s name from the official list of eligible voters “as provided by State law, by reason of criminal conviction or mental incapacity.” 42 U.S.C. § 1973gg6(a)(3)(B) (Supp. 2002).
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State High Sch. Activities Ass'n, 40 F.3d 926, 930 (8th Cir. 1994) (citing 42 U.S.C. § 12133). A “qualified individual with a disability” or “otherwise qualified individual” is “an individual with a disability who, with or without reasonable modifications to rules, policies, or practices, . . . meets the essential eligibility requirements for. . . participation in programs or activities provided by a public entity.” 42 U.S.C. § 12131(2); Pottgen, 40 F.3d at 929.
It is uncontested that Prye has a disability, but it is unclear if he is a “qualified individual with a disability.” Plaintiffs argue that Prye meets all of Missouri’s essential eligibility requirements, and the requirement that a prospective voter not be adjudge incapacitated is not an essential eligibility requirement. Plaintiffs concede that the State has an interest in ensuring the integrity of elections and preventing voting by individuals who do not have the mental capacity to understand the nature and effect of the election. Pls.’ Suggestions in Supp. of Mot. for Prelim. Inj. at 7. Nevertheless, Plaintiffs argue that an adjudication of incapacity does not demonstrate whether a person has the capacity to understand the nature and effect of an election. Plaintiffs ignore the effect of their ability to present this argument to the Missouri Probate Court. Prye has the opportunity to demonstrate that he retains the capacity to vote and is entitled to a limited guardianship, and until this is done Prye cannot be considered a “qualified individual with a disability” under the ADA or an “otherwise qualified individual” under the Rehabilitation Act.
(3) Equal Protection Claim Plaintiffs contend that Missouri’s use of the absence of adjudicated mental incapacity as an elector qualification for federal and state elections violates the equal protection clause. The Equal Protection Claim of the Fourteenth Amendment restrains states from fixing voter qualifications that invidiously discriminate. Harper v. Virginia State Bd. of Elections, 383 U.S. 663, 665 (1996). Similar to a due process claim, a claim that state election laws deny equal protection require courts to weigh the character and magnitude of the asserted injury with the rights that the plaintiff seeks to vindicate. Burdick, 504 U.S. at 434. When a state grants the right to vote to some citizens and
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denies franchise to others, the exclusions must be necessary to promote a compelling state interest. Dunn v. Blumstein, 405 U.S. 330, 337 (1972).
Plaintiffs seek to vindicate Prye’s ability to vote in the same manner as other individuals who a court has not adjudged incapacitated. The applicable legal analysis will not permit the Court to overlook this important distinction. As stated earlier, Prye concedes that the State has an important interest in the administration of its elections and assuring its citizens that participants in its elections are able to understand the choices they make, and the effect of those choices, when voting on a particular candidate or issue. However, Prye had and still has the opportunity to pursue limitations on the Illinois guardianship, and he also has the opportunity to argue that the petition for guardianship pending in Missouri should be a limited guardianship, entitling him to vote. Consequently, he is unlikely to prevail on his equal protection claim.
(C) Balance between the harm and the injury that granting the injunction will inflict on other parties and the public interest
Granting the relief requested by Plaintiffs requires the Court to either presume Prye is competent to vote or conduct judicial proceedings designed to determine that fact on its own. The former option carries with it substantial risks that a person lacking the mental capacity to vote will do so in this election. Any outcome that permits a potentially invalid ballot to be cast should be avoided in order to protect the integrity of the electoral process and the public’s confidence in the election’s outcome. The latter option disrupts the process typically used for such determinations and creates unnecessary tension and duplication of effort between the federal and state courts. While this harm may seem slight, it must also be remembered that it can be easily avoided by requiring Plaintiffs to adhere to the processes available to him in state court. The public’s interests are illserved by granting Plaintiffs’ motion for injunctive relief.
III. CONCLUSION For the foregoing reasons, Plaintiffs’ Motion for Preliminary Injunction is DENIED.
8

IT IS SO ORDERED. DATE: October 26, 2004

/s/ Ortrie D. Smith ORTRIE D. SMITH, JUDGE UNITED STATES DISTRICT COURT

9

 
 IN THE UNITED STATES DISTRICT COURT FOR THE WESTERN DISTRICT OF MISSOURI CENTRAL DIVISION

STEVEN M. PRYE, et al., Plaintiffs,
vs. ROBIN CARNAHAN, et al.,
Defendants.

)

)

)

)

)

Case No. 04-4248-CV-C-ODS

)

)

)

)

ORDER AND OPINION (1) DENYING PLAINTIFFS’ MOTION FOR SUMMARY JUDGMENT AND (2) GRANTING DEFENDANTS’ MOTION FOR SUMMARY
JUDGMENT

Pending are cross-motions for summary judgment. For the following reasons, Plaintiffs’ motion is denied and Defendants’ motion is granted.

I. BACKGROUND

Steven Prye originally filed this suit in October 2004, seeking an order requiring Defendants to allow Prye to register to vote before the November 2004 election. Following a hearing, the Court denied Prye’s request for a preliminary injunction. On December 6, 2004, an Amended Complaint was filed that, inter alia, added Bob Scaletty, Patrick Sharp, and Missouri Protection and Advocacy Services, Incorporated (“MPAS”) as Plaintiffs. At their requests, Sharp and Prye were dismissed on July 21, 2005, and September 22, 2005, respectively, leaving Scaletty and MPAS as the only Plaintiffs. This effectively left Counts I, II, IV and V for consideration because Count III pertained only to Prye.
Generally speaking, the Amended Complaint challenges Missouri’s Constitution and statutes that deny the right to vote to individuals who have been appointed guardians under a full order of protection due to mental incapacity. Counts I and II assert claims under the Equal Protection and Due Process clauses, respectively, while

Counts IV and V assert claims under the Americans with Disabilities Act (“ADA”) and the Rehabilitation Act.
For purposes of the parties’ cross-motions for summary judgment, the following facts are undisputed.1 Scaletty has been diagnosed as suffering from schizophrenia and, due to his mental illness, in 1999 was placed under a full order of protection in accordance with procedures established in Missouri law. Although the order of protection reserved his right to vote, he was subsequently denied the right to vote by election officials who explained that state law does not allow individuals under an order of protection to vote. However, in January 2005 (after Scaletty became a party in this case), the Kansas City Board of Election Commissioners sent Scaletty’s guardian a voter identification card on his behalf and advised that Scaletty was eligible to vote.
MOPAS is a not-for-profit corporation the State of Missouri has designated, pursuant to both the Protection and Advocacy for Individuals with Mental Illness Act, 42 U.S.C. § 10801 et seq. (“PAIMI”), and the Developmental Disabilities Assistant and Bill of Rights Act, 42 U.S.C. § 15001 et seq. (“DD Act”), as Missouri’s statewide protection and advocacy entity to protect and advocate for the legal and civil rights of Missourians who have mental illnesses and developmental difficulties. Pursuant to the DD Act, MOPAS is authorized to pursue legal and other remedies for “the protection of, and advocacy for, the rights of” individuals with developmental disabilities, 42 U.S.C. § 15043(a)(2)(A)(I), and is independent of any agency (including any state agency) “that provides treatment, services, or habilitation to individuals with developmental disabilities.” Id. § 15043(a)(2)(G). The provisions under PAIMI are similar. 42 U.S.C. § 10805(a)(1) -(2).
1The Court has not attempted to summarize all the facts advanced by the parties because many of them (including particularly the generalized observations advanced by Plaintiffs) are not relevant to the governing legal inquiry.
2

II. DISCUSSION
A. Jurisdiction
Defendants challenge the Court’s jurisdiction, contending (1) Scaletty lacks standing because his claims are moot and (2) MOPAS lacks standing because it has not suffered an injury and (with Scaletty’s anticipated dismissal), there are no individual plaintiffs with standing in the case. The Court disagrees.
Defendants’ arguments regarding Scaletty conflate two related jurisdictional concepts. “The Supreme Court has repeatedly described the mootness doctrine as ‘the doctrine of standing set in a time frame: The requisite personal interest that must exist at the commencement of the litigation (standing) must continue throughout its existence (mootness).’” McCarthy v. Ozark School Dist., 359 F.3d 1029, 1035 (8th Cir. 2004) (quoting Friends of the Earth, Inc. v. Laidlaw Envt’l Servs. (TOC), Inc., 528 U.S. 167, 189 (2000)). Thus, standing is to be evaluated at the time the lawsuit is initiated, and there is no doubt that at the time Scaletty joined the suit as a plaintiff he was suffering an injury in fact because he was denied the right to vote.
The mootness doctrine is an outgrowth of Article III’s case and controversy requirement. E.g., Lupiani v. Wal-Mart Stores, Inc., 435 F.3d 842, 847 (8th Cir. 2006). “Since Art[icle] III courts are precluded from issuing advisory opinions, it necessarily follows that they are impotent to decide questions that cannot affect the rights of litigants in the case before them.” Super Tire Eng’g Co. v. McCorkle, 416 U.S. 115, 127 (1974) (quotations omitted). Scaletty seeks only equitable relief and not damages; the most he could hope for is an order or injunction requiring Defendants to allow him to vote, but Defendants have taken this action voluntarily. Consequently, the Court cannot affect the parties’ rights or change their relationship, so Scaletty’s claims are moot.
However, there are circumstances in which moot cases should continue and not be dismissed. One exception arises when the defendant voluntarily ceases the challenged practice or act. "It is well settled that a defendant's voluntary cessation of a challenged practice does not deprive a federal court of its power to determine the
3

legality of the practice unless it is absolutely clear that the allegedly wrongful behavior could not reasonably be expected to recur." Buckhannon Bd. & Care Home, Inc. v. West Virginia Dep’t of Health & Human Resources, 532 U.S. 598, 609 (2001) (quotations omitted, emphasis supplied); see also Adarand Constructors, Inc. v. Slater, 528 U.S. 216, 222 (2000). “The ‘heavy burden of persua[ding]’ the court that the challenged conduct cannot reasonably be expected to start up again lies with the party asserting mootness.” Friends of the Earth, 528 U.S. at 189 (quoting United States v. Concentrated Phosphate Export Ass’n, 393 U.S. 199, 203 (1968)).
Defendants do not dispute these legal precepts, but instead insist they have satisfied their burden by issuing Scaletty a voter registration card and not further interfering with his right to vote. This only demonstrates Defendants have voluntarily ceased the challenged conduct. Keeping in mind that theirs is a “heavy burden,” the Court cannot conclude it is “absolutely clear” Defendants will not reverse course and return to their prior course of prohibiting Scaletty from voting. Therefore, the voluntary cessation exception to the mootness doctrine applies, and the Court has jurisdiction over Scaletty’s claims.
Defendants also refer to cases discussing the certainty of prospects for harm, but they are cases discussing whether and when the fear of injury is a sufficient injury in fact to confer standing upon the plaintiff. As discussed, standing is not an issue because Scaletty was not allowed to vote when he asserted his legal claims in this case and there can be no doubt that being denied an opportunity to vote is an injury in fact. Caselaw clearly places the burden on Defendants to demonstrate their voluntary cessation is permanent, and Defendants have not satisfied this burden.
The arguments regarding MOPAS depend, in large measure, on the arguments regarding Scaletty. Defendants contend associational standing can exist only if the association is joined by a member who has individual standing. To the extent this legal reasoning is valid (an issue the Court need not address2), it is answered by the Court’s
2There is some authority suggesting that an association may have standing so long as one of the association’s members would have standing, regardless of whether the individual joins in the suit.
4

conclusion that Scaletty has standing to sue. The Court also holds MOPAS satisfies the other requirements for associational standing because the interests it asserts are germane to its purpose and the relief it seeks does not require participation of individual members. E.g., United Auto., Aerospace & Agric. Implement Workers of Am. v. Brock, 477 U.S. 274, 281-82 (1986) (quoting Hunt v. Washington State Apple Advertising Comm'n, 432 U.S. 333, 343 (1977) and Warth v. Seldin, 422 U.S. 490, 511 (1975)).
B. Eleventh Amendment Immunity
Defendants Robin Carnahan and Jeremiah (Jay) Nixon, who have been sued in their official capacities as Missouri Secretary of State and Missouri Attorney General, respectively, contend they are entitled to Eleventh Amendment immunity because they are not proper defendants in this action. This argument is somewhat confusing because it improperly blends two distinct defenses.
These officials contend they are not responsible for administering elections or registering voters. If this were the case, these officials would be entitled to judgment for that reason alone just like any other purported defendant in any other case who had no role in causing the plaintiff’s injury, and there would be no need to consider the Eleventh Amendment. However, the officials’ claim of noninvolvement lacks merit. Plaintiffs’ challenge is not limited to the decisions of those who register voters, but to laws that dictate who may or may not vote. By law, the Missouri Secretary of State and the Missouri Attorney General are charged with carrying out statutory directives on these matters, and are therefore proper defendants in this case. This observation resolves the issue without necessitating consideration of the novel assertion that the Eleventh Amendment bars imposition of purely prospective equitable relief.
5

C. Statutory Claims3
Plaintiffs’ claims rely variously on general propositions about individuals adjudged to be incapacitated and specific facts from specific cases. Separating these matters is important to an understanding of Plaintiffs’ claims as well as the legal analysis they necessitate. This process is best undertaken by starting with the general propositions and arguments.
1.
The Missouri Constitution establishes the qualifications for voters and in so doing declares, inter alia, that “no person who has a guardian of his or her estate or person by reason of mental incapacity, appointed by a court of competent jurisdiction . . . shall be entitled to vote . . . .” Mo. Const. Art. 8, § 2. Prior to 1958, the provision declared simply “no insane person” could vote; the language was changed “to give polling officials something tangible on which to decide whether a person was disqualified by reason of his mental condition.” New v. Corrough, 370 S.W.2d 323, 327 (Mo. 1963).
Missouri’s Probate Code establishes the procedures by which an individual might be adjudicated as incapacitated and a guardian appointed. An “incapacitated person” is “one who is unable by reason of any physical or mental condition to receive and evaluate information or to communicate decisions to such an extent that he lacks capacity to meet essential requirements for food, clothing shelter, safety or other care such that serious physical injury, illness, or disease is likely to occur.” Mo. Rev. Stat. § 475.010(9). However, a person may be adjudicated to be “partially incapacitated” if they are “unable by reason of any physical or mental condition to receive and evaluate information or to communicate decisions to the extent that he lacks capacity to meet, in part, essential requirements for food, clothing, shelter, safety, or other care without
3In light of the Court’s conclusions regarding the application of these statutes, there is no need to consider Defendants’ alternative argument that the statutes are unconstitutional.
6

court-ordered assistance.” Id. § 475.010(14). A finding of partial incapacity does not trigger any legal disabilities “except to the extent specified in the order of adjudication, provided that the court shall not impose . . . any legal disability other than those which are consistent with the condition of the ward or protectee.” Id. § 475.078.1 (emphasis supplied). Conversely, a finding of full or total incapacity “does operate to impose . . . all legal disabilities provided by law, except to the extent specified in the order of adjudication . . . .” Id. § 475.078.2 (emphasis supplied). One such “legal disability provided by law” is a restriction on the ability to vote. See id. § 115.133.2. The combined effects of the statutes cited is to (1) preserve the right to vote for partially incapacitated individuals, unless the court specifies otherwise, and (2) deny the right to vote for totally incapacitated individuals, unless the court specifies otherwise. As a final indication that a probate judge is empowered and obligated to tailor an order of protection to the needs of the ward or protectee and not impose limits that are greater than necessary, section 475.078.3 states as follows (the emphasis is supplied):
A person who has been adjudicated incapacitated . . . shall be presumed to be incompetent. A person who has been adjudicated partially incapacitated . . . shall be presumed to be incompetent. The court . . . may determine that an incapacitated . . . or partially incapacitated . . . person is incompetent for some purposes and competent for other purposes.
Plaintiffs do not contest that a person may be mentally incapacitated to such a degree that Missouri may lawfully deprive that person of the right to vote. Plaintiffs instead contend Missouri violates federal law by denying the right to vote to all persons under a full order of protection due to a finding of incapacity because incapacitated individuals (or, at least some of them) are qualified to vote notwithstanding a probate court’s finding of incapacity.
7

The Americans with Disabilities Act (“ADA”)4 declares that “no qualified individual with a disability shall, by reason of such disability, be excluded from participation in or be denied the benefits of the services, programs or activities of a public entity, or be subjected to discrimination by any such entity.” 42 U.S.C. § 12132. A “qualified individual with a disability” is “an individual with a disability who, with or without reasonable modifications to rules, policies, or practices . . . meets the essential eligibility requirements for the receipt of services or the participation in programs or activities provided by a public entity.” Id. § 12131(2).
Defendants argue Congress did not intend the ADA to apply to elections. In so doing, they overstate the reach of the Fifth Circuit’s holding in Lightburne v. City of El Paso. There, the issue at hand was whether the Texas Secretary of State was a proper defendant: the Texas Secretary of State was statutorily charged with the duty of “enforcing election laws” and the plaintiffs contended the ADA was an “election law” within the meaning of the Texas statute. 118 F.3d 421, 428-29 (5th Cir. 1997), cert. denied, 522 U.S. 1052 (1998). The Fifth Circuit held it was not, so the Texas Secretary of State was not the official responsible for enforcing its provisions in the election context. Id. at 429-30. The Fifth Circuit did not hold the ADA has no application to state elections. To the contrary, the plain language of the statute dictates that it does. Cf. Pennsylvania Dep’t of Corrections v. Yeskey, 524 U.S. 206, 210-11 (1998) (holding ADA applies to prisons); Gorman v. Bartch, 152 F.3d 907, 912-13 (8th Cir. 1998) (holding ADA applies to transportation of arrested individual to jail). An election is undeniably an activity of a public entity, and the ADA prohibits excluding qualified individuals with disabilities from participating in a public entity’s activities.5
4Plaintiffs raise claims under the Americans with Disabilities Act (“ADA”) and the Rehabilitation Act. These statutes are similar in all pertinent respects and caselaw interpreting one may be used to interpret the other. E.g., Allison v. Department of Corrections, 94 F.3d 494, 497 (8th Cir. 1996). In the interests of simplicity and brevity, the Court will focus on the ADA and observe that the analysis would be the same for the Rehabilitation Act.
5By way of a crude and obviously unlikely example, the Court has no doubt that a state law prohibiting paraplegics from voting would violate the ADA. Of course, this
8

The difficulty arises in determining whether people who have been adjudged incompetent can, with or without accommodation, meet the essential eligibility requirements for voting. There is no universal answer to this question: some can, and some cannot. Plaintiffs concede several states have established competency as a prerequisite to voting, and these decisions are specifically countenanced in the National Voter Registration Act, 42 U.S.C. § 1973gg-6(a)(3)(B), which allows states to remove registrants from the list of eligible voters “as provided by State law, by reason of criminal conviction or mental incapacity.” No federal statute – including the ADA and the Rehabilitation Act – purports to establish a standard of competency for voters. However, Plaintiffs have conceded that (1) a state may establish a standard of competency for voters and (2) under such a standard, some people may be so incapacitated they lack the ability to vote. The question thus becomes: does Missouri’s method for making this determination violate the ADA? Considering the entirety of Missouri law, the Court answers this question in the negative.
In their generalized attack, Plaintiffs point only to the constitutional and statutory language indicating that a person under a full order of protection is presumed incompetent and cannot vote. This narrow examination is enlightened by examining the totality of Missouri law, which requires an individualized determination of the individual’s mental capacity and entry of an order that is no more limiting than necessary to protect the individual. See, e.g., Mo. Rev. Stat. § 475.078.3 (allowing the probate court to find, and enter an order recognizing, a person is incompetent as to some matters and competent as to others). If the evidence in a particular case persuades a probate court that a person is mentally incapacitated as to some matters but not incapacitated with respect to his or her ability to vote, the court is to enter an order tailored to reflect this finding. It makes no difference if one views the person as (1) partially incapacitated or (2) fully incapacitated except for certain areas, as contemplated by section 475.078.2: the net effect is to afford the person the protection needed and allow him or her to operate without the strictures of an order of protection with respect to those aspects of
observation is purely dicta.
9

life for which protection is not required --including, if appropriate in a given case, the right to vote).
The Court’s conclusion might be different if the entire sum and substance of Missouri law dictated that any person with a legally appointed guardian – regardless of that person’s abilities and limitations – could not vote. Such a situation might violate the ADA. However, this is not the entirety of Missouri law. Missouri affords an individualized determination of a person’s abilities and limitations and denies the right to vote to those who lack the mental capacity to exercise that right and therefore are not qualified to do so. In short, the scheme is designed to differentiate those who are qualified to vote from those who are not, and deny the right only to those who are not.
2.
In their more specific arguments, Plaintiffs present evidence tending to demonstrate certain individuals have been denied the right to vote following proceedings in probate court even though they actually have the mental capacity to vote. The difficulty arises in determining what role, if any, this contention can play in this proceeding – particularly in light of Plaintiffs’ failure to clearly indicate the role this evidence is intended to play.
To the extent Plaintiffs intend to suggest individuals adjudged mentally incapacitated are irrevocably branded as unable to vote, their argument fails. These individuals have recourse in the probate proceedings. Apart from a generalized ability to seek modifications to an order of protection when conditions change, state law requires periodic review by the probate court as a matter of course. See Mo. Rev. Stat. § 475.082.
Plaintiffs may also be contesting the correctness or legality of the rulings made in these individual cases. Setting aside the question of whether this is permissible given that these individuals are not parties to the case, the Court observes the effort is
10

impermissible as violative of the Rooker/Feldman doctrine.6 The doctrine bars relief in “cases brought by state-court losers complaining of injuries caused by state-court judgments rendered before the district court proceedings commenced and inviting district court review and rejection of those judgments.” Exxon Mobil Corp. v. Saudi Basic Industries Corp., 544 U.S. 280, 284 (2005). The Court does not intend to utilize the term “losers” as referring to the Plaintiffs, but the underlying concept applies: Plaintiffs contend a state court’s decision violated the law and are asking a federal court to invalidate that decision. This is not allowed. Id. at 284-85.
It may be that Plaintiffs simply wish to demonstrate the Missouri probate courts occasionally produce incorrect results. If this is their intent, then two problems are presented. First, the combined effects of the Rooker/Feldman doctrine and customary preclusion principles prevent the Court from relitigating or “re-deciding” the extent of an individual’s competency. The Court must accept the findings and conclusions of the state courts on this matter and cannot endeavor to ascertain the correctness of those decisions as part of an effort to invalidate the process as a whole. Second, even if it could be established that Missouri’s probate courts make errors, such a showing would not demonstrate a violation of federal law. The ADA and the Rehabilitation Act do not establish a basis for reviewing state court decisions or “federalizing” competency hearings.
Finally, it may be that Plaintiffs are relying on these specific examples to demonstrate the content of Missouri law. In other words, they may be arguing that the failure to preserve these individuals’ voting rights demonstrates Missouri law is incapable of doing so. This argument not only flies in the face of the statutory language cited elsewhere, but it also suffers from the logical fallacy known variously as “arguing general from the specific” or “hasty generalization.”
6The doctrine is named after the Supreme Court’s decisions in Rooker v. Fidelity Trust Co., 263 U.S. 413 (1923) and District of Columbia Court of Appeals v. Feldman, 460 U.S. 462 (1983).
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D. Constitutional Claims
Plaintiffs’ constitutional arguments rest on the same incomplete characterization of Missouri law as do their statutory arguments. They describe Missouri law as erecting a “voting ban [that] relies not on a specific determination about an individual’s competence to vote, but instead presumes that individuals lack the competence to vote based on about factors that are distinct from, and more complex than, the ability to vote.” Memorandum in Support of Plaintiffs’ Motion for Summary Judgment (Doc. # 133) at 33; see also id. at 32 (describing Missouri law as creating a “categorical deprivation” of the right to vote). As noted earlier, this is not an accurate description of Missouri law. A full order of protection may be issued with exceptions, including an exception preserving the right to vote. A partial order of protection may also preserve the right to vote. Regardless of the option employed, the order actually issued is based on the particular circumstances of the person involved and based on an individualized assessment by a judge. This is hardly the categorical or generalized prohibition Plaintiffs would have the Court believe exists.
As a final indicia of the flaw in Plaintiffs’ argument, the Court need look no further than Plaintiff Scaletty’s circumstances (which were alluded to earlier). Scaletty was placed under a full order of protection that specifically reserved his right to vote. Id. at 7. It is true that this aspect of the order was not honored until this suit was filed, but this does not demonstrate a flaw in the process for determining whether Scaletty (or anyone else) has the mental capacity to vote.7 To the contrary, it demonstrates Plaintiffs’ description of Missouri law is inaccurate, and individualized determinations are both permitted and made.
7The Court does not wish to minimize the importance of Scaletty’s right to vote. However, state and local officials’ failure to honor a state court’s order or misunderstanding of the content of state law does not demonstrate the unconstitutionality of the process or laws that led to the issuance of the order.
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III. CONCLUSION
For these reasons Plaintiffs’ Motion for Summary Judgment (Doc. # 132) is denied and Defendants’ Motion for Summary Judgment (Doc. # 136) is granted. IT IS SO ORDERED.

DATE: July 7, 2006

/s/ Ortrie D. Smith ORTRIE D. SMITH, JUDGE UNITED STATES DISTRICT COURT

13

 
 Case 2:04-cv-04248-ODS Document 151 Filed 07/07/2006 Page 1 of 13

IN THE UNITED STATES DISTRICT COURT FOR THE WESTERN DISTRICT OF MISSOURI CENTRAL DIVISION

STEVEN M. PRYE, et al., Plaintiffs,
vs. ROBIN CARNAHAN, et al.,
Defendants.

)

)

)

)

)

Case No. 04-4248-CV-C-ODS

)

)

)

)

ORDER AND OPINION (1) DENYING PLAINTIFFS’ MOTION FOR SUMMARY JUDGMENT AND (2) GRANTING DEFENDANTS’ MOTION FOR SUMMARY
JUDGMENT

Pending are cross-motions for summary judgment. For the following reasons, Plaintiffs’ motion is denied and Defendants’ motion is granted.

I. BACKGROUND

Steven Prye originally filed this suit in October 2004, seeking an order requiring Defendants to allow Prye to register to vote before the November 2004 election. Following a hearing, the Court denied Prye’s request for a preliminary injunction. On December 6, 2004, an Amended Complaint was filed that, inter alia, added Bob Scaletty, Patrick Sharp, and Missouri Protection and Advocacy Services, Incorporated (“MPAS”) as Plaintiffs. At their requests, Sharp and Prye were dismissed on July 21, 2005, and September 22, 2005, respectively, leaving Scaletty and MPAS as the only Plaintiffs. This effectively left Counts I, II, IV and V for consideration because Count III pertained only to Prye.
Generally speaking, the Amended Complaint challenges Missouri’s Constitution and statutes that deny the right to vote to individuals who have been appointed guardians under a full order of protection due to mental incapacity. Counts I and II assert claims under the Equal Protection and Due Process clauses, respectively, while

Case 2:04-cv-04248-ODS Document 151 Filed 07/07/2006 Page 2 of 13
Counts IV and V assert claims under the Americans with Disabilities Act (“ADA”) and the Rehabilitation Act.
For purposes of the parties’ cross-motions for summary judgment, the following facts are undisputed.1 Scaletty has been diagnosed as suffering from schizophrenia and, due to his mental illness, in 1999 was placed under a full order of protection in accordance with procedures established in Missouri law. Although the order of protection reserved his right to vote, he was subsequently denied the right to vote by election officials who explained that state law does not allow individuals under an order of protection to vote. However, in January 2005 (after Scaletty became a party in this case), the Kansas City Board of Election Commissioners sent Scaletty’s guardian a voter identification card on his behalf and advised that Scaletty was eligible to vote.
MOPAS is a not-for-profit corporation the State of Missouri has designated, pursuant to both the Protection and Advocacy for Individuals with Mental Illness Act, 42 U.S.C. § 10801 et seq. (“PAIMI”), and the Developmental Disabilities Assistant and Bill of Rights Act, 42 U.S.C. § 15001 et seq. (“DD Act”), as Missouri’s statewide protection and advocacy entity to protect and advocate for the legal and civil rights of Missourians who have mental illnesses and developmental difficulties. Pursuant to the DD Act, MOPAS is authorized to pursue legal and other remedies for “the protection of, and advocacy for, the rights of” individuals with developmental disabilities, 42 U.S.C. § 15043(a)(2)(A)(I), and is independent of any agency (including any state agency) “that provides treatment, services, or habilitation to individuals with developmental disabilities.” Id. § 15043(a)(2)(G). The provisions under PAIMI are similar. 42 U.S.C. § 10805(a)(1) -(2).
1The Court has not attempted to summarize all the facts advanced by the parties because many of them (including particularly the generalized observations advanced by Plaintiffs) are not relevant to the governing legal inquiry.
2

Case 2:04-cv-04248-ODS Document 151 Filed 07/07/2006 Page 3 of 13
II. DISCUSSION
A. Jurisdiction
Defendants challenge the Court’s jurisdiction, contending (1) Scaletty lacks standing because his claims are moot and (2) MOPAS lacks standing because it has not suffered an injury and (with Scaletty’s anticipated dismissal), there are no individual plaintiffs with standing in the case. The Court disagrees.
Defendants’ arguments regarding Scaletty conflate two related jurisdictional concepts. “The Supreme Court has repeatedly described the mootness doctrine as ‘the doctrine of standing set in a time frame: The requisite personal interest that must exist at the commencement of the litigation (standing) must continue throughout its existence (mootness).’” McCarthy v. Ozark School Dist., 359 F.3d 1029, 1035 (8th Cir. 2004) (quoting Friends of the Earth, Inc. v. Laidlaw Envt’l Servs. (TOC), Inc., 528 U.S. 167, 189 (2000)). Thus, standing is to be evaluated at the time the lawsuit is initiated, and there is no doubt that at the time Scaletty joined the suit as a plaintiff he was suffering an injury in fact because he was denied the right to vote.
The mootness doctrine is an outgrowth of Article III’s case and controversy requirement. E.g., Lupiani v. Wal-Mart Stores, Inc., 435 F.3d 842, 847 (8th Cir. 2006). “Since Art[icle] III courts are precluded from issuing advisory opinions, it necessarily follows that they are impotent to decide questions that cannot affect the rights of litigants in the case before them.” Super Tire Eng’g Co. v. McCorkle, 416 U.S. 115, 127 (1974) (quotations omitted). Scaletty seeks only equitable relief and not damages; the most he could hope for is an order or injunction requiring Defendants to allow him to vote, but Defendants have taken this action voluntarily. Consequently, the Court cannot affect the parties’ rights or change their relationship, so Scaletty’s claims are moot.
However, there are circumstances in which moot cases should continue and not be dismissed. One exception arises when the defendant voluntarily ceases the challenged practice or act. "It is well settled that a defendant's voluntary cessation of a challenged practice does not deprive a federal court of its power to determine the
3

Case 2:04-cv-04248-ODS Document 151 Filed 07/07/2006 Page 4 of 13
legality of the practice unless it is absolutely clear that the allegedly wrongful behavior could not reasonably be expected to recur." Buckhannon Bd. & Care Home, Inc. v. West Virginia Dep’t of Health & Human Resources, 532 U.S. 598, 609 (2001) (quotations omitted, emphasis supplied); see also Adarand Constructors, Inc. v. Slater, 528 U.S. 216, 222 (2000). “The ‘heavy burden of persua[ding]’ the court that the challenged conduct cannot reasonably be expected to start up again lies with the party asserting mootness.” Friends of the Earth, 528 U.S. at 189 (quoting United States v. Concentrated Phosphate Export Ass’n, 393 U.S. 199, 203 (1968)).
Defendants do not dispute these legal precepts, but instead insist they have satisfied their burden by issuing Scaletty a voter registration card and not further interfering with his right to vote. This only demonstrates Defendants have voluntarily ceased the challenged conduct. Keeping in mind that theirs is a “heavy burden,” the Court cannot conclude it is “absolutely clear” Defendants will not reverse course and return to their prior course of prohibiting Scaletty from voting. Therefore, the voluntary cessation exception to the mootness doctrine applies, and the Court has jurisdiction over Scaletty’s claims.
Defendants also refer to cases discussing the certainty of prospects for harm, but they are cases discussing whether and when the fear of injury is a sufficient injury in fact to confer standing upon the plaintiff. As discussed, standing is not an issue because Scaletty was not allowed to vote when he asserted his legal claims in this case and there can be no doubt that being denied an opportunity to vote is an injury in fact. Caselaw clearly places the burden on Defendants to demonstrate their voluntary cessation is permanent, and Defendants have not satisfied this burden.
The arguments regarding MOPAS depend, in large measure, on the arguments regarding Scaletty. Defendants contend associational standing can exist only if the association is joined by a member who has individual standing. To the extent this legal reasoning is valid (an issue the Court need not address2), it is answered by the Court’s
2There is some authority suggesting that an association may have standing so long as one of the association’s members would have standing, regardless of whether the individual joins in the suit.
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conclusion that Scaletty has standing to sue. The Court also holds MOPAS satisfies the other requirements for associational standing because the interests it asserts are germane to its purpose and the relief it seeks does not require participation of individual members. E.g., United Auto., Aerospace & Agric. Implement Workers of Am. v. Brock, 477 U.S. 274, 281-82 (1986) (quoting Hunt v. Washington State Apple Advertising Comm'n, 432 U.S. 333, 343 (1977) and Warth v. Seldin, 422 U.S. 490, 511 (1975)).
B. Eleventh Amendment Immunity
Defendants Robin Carnahan and Jeremiah (Jay) Nixon, who have been sued in their official capacities as Missouri Secretary of State and Missouri Attorney General, respectively, contend they are entitled to Eleventh Amendment immunity because they are not proper defendants in this action. This argument is somewhat confusing because it improperly blends two distinct defenses.
These officials contend they are not responsible for administering elections or registering voters. If this were the case, these officials would be entitled to judgment for that reason alone just like any other purported defendant in any other case who had no role in causing the plaintiff’s injury, and there would be no need to consider the Eleventh Amendment. However, the officials’ claim of noninvolvement lacks merit. Plaintiffs’ challenge is not limited to the decisions of those who register voters, but to laws that dictate who may or may not vote. By law, the Missouri Secretary of State and the Missouri Attorney General are charged with carrying out statutory directives on these matters, and are therefore proper defendants in this case. This observation resolves the issue without necessitating consideration of the novel assertion that the Eleventh Amendment bars imposition of purely prospective equitable relief.
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C. Statutory Claims3
Plaintiffs’ claims rely variously on general propositions about individuals adjudged to be incapacitated and specific facts from specific cases. Separating these matters is important to an understanding of Plaintiffs’ claims as well as the legal analysis they necessitate. This process is best undertaken by starting with the general propositions and arguments.
1.
The Missouri Constitution establishes the qualifications for voters and in so doing declares, inter alia, that “no person who has a guardian of his or her estate or person by reason of mental incapacity, appointed by a court of competent jurisdiction . . . shall be entitled to vote . . . .” Mo. Const. Art. 8, § 2. Prior to 1958, the provision declared simply “no insane person” could vote; the language was changed “to give polling officials something tangible on which to decide whether a person was disqualified by reason of his mental condition.” New v. Corrough, 370 S.W.2d 323, 327 (Mo. 1963).
Missouri’s Probate Code establishes the procedures by which an individual might be adjudicated as incapacitated and a guardian appointed. An “incapacitated person” is “one who is unable by reason of any physical or mental condition to receive and evaluate information or to communicate decisions to such an extent that he lacks capacity to meet essential requirements for food, clothing shelter, safety or other care such that serious physical injury, illness, or disease is likely to occur.” Mo. Rev. Stat. § 475.010(9). However, a person may be adjudicated to be “partially incapacitated” if they are “unable by reason of any physical or mental condition to receive and evaluate information or to communicate decisions to the extent that he lacks capacity to meet, in part, essential requirements for food, clothing, shelter, safety, or other care without
3In light of the Court’s conclusions regarding the application of these statutes, there is no need to consider Defendants’ alternative argument that the statutes are unconstitutional.
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court-ordered assistance.” Id. § 475.010(14). A finding of partial incapacity does not trigger any legal disabilities “except to the extent specified in the order of adjudication, provided that the court shall not impose . . . any legal disability other than those which are consistent with the condition of the ward or protectee.” Id. § 475.078.1 (emphasis supplied). Conversely, a finding of full or total incapacity “does operate to impose . . . all legal disabilities provided by law, except to the extent specified in the order of adjudication . . . .” Id. § 475.078.2 (emphasis supplied). One such “legal disability provided by law” is a restriction on the ability to vote. See id. § 115.133.2. The combined effects of the statutes cited is to (1) preserve the right to vote for partially incapacitated individuals, unless the court specifies otherwise, and (2) deny the right to vote for totally incapacitated individuals, unless the court specifies otherwise. As a final indication that a probate judge is empowered and obligated to tailor an order of protection to the needs of the ward or protectee and not impose limits that are greater than necessary, section 475.078.3 states as follows (the emphasis is supplied):
A person who has been adjudicated incapacitated . . . shall be presumed to be incompetent. A person who has been adjudicated partially incapacitated . . . shall be presumed to be incompetent. The court . . . may determine that an incapacitated . . . or partially incapacitated . . . person is incompetent for some purposes and competent for other purposes.
Plaintiffs do not contest that a person may be mentally incapacitated to such a degree that Missouri may lawfully deprive that person of the right to vote. Plaintiffs instead contend Missouri violates federal law by denying the right to vote to all persons under a full order of protection due to a finding of incapacity because incapacitated individuals (or, at least some of them) are qualified to vote notwithstanding a probate court’s finding of incapacity.
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The Americans with Disabilities Act (“ADA”)4 declares that “no qualified individual with a disability shall, by reason of such disability, be excluded from participation in or be denied the benefits of the services, programs or activities of a public entity, or be subjected to discrimination by any such entity.” 42 U.S.C. § 12132. A “qualified individual with a disability” is “an individual with a disability who, with or without reasonable modifications to rules, policies, or practices . . . meets the essential eligibility requirements for the receipt of services or the participation in programs or activities provided by a public entity.” Id. § 12131(2).
Defendants argue Congress did not intend the ADA to apply to elections. In so doing, they overstate the reach of the Fifth Circuit’s holding in Lightburne v. City of El Paso. There, the issue at hand was whether the Texas Secretary of State was a proper defendant: the Texas Secretary of State was statutorily charged with the duty of “enforcing election laws” and the plaintiffs contended the ADA was an “election law” within the meaning of the Texas statute. 118 F.3d 421, 428-29 (5th Cir. 1997), cert. denied, 522 U.S. 1052 (1998). The Fifth Circuit held it was not, so the Texas Secretary of State was not the official responsible for enforcing its provisions in the election context. Id. at 429-30. The Fifth Circuit did not hold the ADA has no application to state elections. To the contrary, the plain language of the statute dictates that it does. Cf. Pennsylvania Dep’t of Corrections v. Yeskey, 524 U.S. 206, 210-11 (1998) (holding ADA applies to prisons); Gorman v. Bartch, 152 F.3d 907, 912-13 (8th Cir. 1998) (holding ADA applies to transportation of arrested individual to jail). An election is undeniably an activity of a public entity, and the ADA prohibits excluding qualified individuals with disabilities from participating in a public entity’s activities.5
4Plaintiffs raise claims under the Americans with Disabilities Act (“ADA”) and the Rehabilitation Act. These statutes are similar in all pertinent respects and caselaw interpreting one may be used to interpret the other. E.g., Allison v. Department of Corrections, 94 F.3d 494, 497 (8th Cir. 1996). In the interests of simplicity and brevity, the Court will focus on the ADA and observe that the analysis would be the same for the Rehabilitation Act.
5By way of a crude and obviously unlikely example, the Court has no doubt that a state law prohibiting paraplegics from voting would violate the ADA. Of course, this
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The difficulty arises in determining whether people who have been adjudged incompetent can, with or without accommodation, meet the essential eligibility requirements for voting. There is no universal answer to this question: some can, and some cannot. Plaintiffs concede several states have established competency as a prerequisite to voting, and these decisions are specifically countenanced in the National Voter Registration Act, 42 U.S.C. § 1973gg-6(a)(3)(B), which allows states to remove registrants from the list of eligible voters “as provided by State law, by reason of criminal conviction or mental incapacity.” No federal statute – including the ADA and the Rehabilitation Act – purports to establish a standard of competency for voters. However, Plaintiffs have conceded that (1) a state may establish a standard of competency for voters and (2) under such a standard, some people may be so incapacitated they lack the ability to vote. The question thus becomes: does Missouri’s method for making this determination violate the ADA? Considering the entirety of Missouri law, the Court answers this question in the negative.
In their generalized attack, Plaintiffs point only to the constitutional and statutory language indicating that a person under a full order of protection is presumed incompetent and cannot vote. This narrow examination is enlightened by examining the totality of Missouri law, which requires an individualized determination of the individual’s mental capacity and entry of an order that is no more limiting than necessary to protect the individual. See, e.g., Mo. Rev. Stat. § 475.078.3 (allowing the probate court to find, and enter an order recognizing, a person is incompetent as to some matters and competent as to others). If the evidence in a particular case persuades a probate court that a person is mentally incapacitated as to some matters but not incapacitated with respect to his or her ability to vote, the court is to enter an order tailored to reflect this finding. It makes no difference if one views the person as (1) partially incapacitated or (2) fully incapacitated except for certain areas, as contemplated by section 475.078.2: the net effect is to afford the person the protection needed and allow him or her to operate without the strictures of an order of protection with respect to those aspects of
observation is purely dicta.
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life for which protection is not required --including, if appropriate in a given case, the right to vote).
The Court’s conclusion might be different if the entire sum and substance of Missouri law dictated that any person with a legally appointed guardian – regardless of that person’s abilities and limitations – could not vote. Such a situation might violate the ADA. However, this is not the entirety of Missouri law. Missouri affords an individualized determination of a person’s abilities and limitations and denies the right to vote to those who lack the mental capacity to exercise that right and therefore are not qualified to do so. In short, the scheme is designed to differentiate those who are qualified to vote from those who are not, and deny the right only to those who are not.
2.
In their more specific arguments, Plaintiffs present evidence tending to demonstrate certain individuals have been denied the right to vote following proceedings in probate court even though they actually have the mental capacity to vote. The difficulty arises in determining what role, if any, this contention can play in this proceeding – particularly in light of Plaintiffs’ failure to clearly indicate the role this evidence is intended to play.
To the extent Plaintiffs intend to suggest individuals adjudged mentally incapacitated are irrevocably branded as unable to vote, their argument fails. These individuals have recourse in the probate proceedings. Apart from a generalized ability to seek modifications to an order of protection when conditions change, state law requires periodic review by the probate court as a matter of course. See Mo. Rev. Stat. § 475.082.
Plaintiffs may also be contesting the correctness or legality of the rulings made in these individual cases. Setting aside the question of whether this is permissible given that these individuals are not parties to the case, the Court observes the effort is
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impermissible as violative of the Rooker/Feldman doctrine.6 The doctrine bars relief in “cases brought by state-court losers complaining of injuries caused by state-court judgments rendered before the district court proceedings commenced and inviting district court review and rejection of those judgments.” Exxon Mobil Corp. v. Saudi Basic Industries Corp., 544 U.S. 280, 284 (2005). The Court does not intend to utilize the term “losers” as referring to the Plaintiffs, but the underlying concept applies: Plaintiffs contend a state court’s decision violated the law and are asking a federal court to invalidate that decision. This is not allowed. Id. at 284-85.
It may be that Plaintiffs simply wish to demonstrate the Missouri probate courts occasionally produce incorrect results. If this is their intent, then two problems are presented. First, the combined effects of the Rooker/Feldman doctrine and customary preclusion principles prevent the Court from relitigating or “re-deciding” the extent of an individual’s competency. The Court must accept the findings and conclusions of the state courts on this matter and cannot endeavor to ascertain the correctness of those decisions as part of an effort to invalidate the process as a whole. Second, even if it could be established that Missouri’s probate courts make errors, such a showing would not demonstrate a violation of federal law. The ADA and the Rehabilitation Act do not establish a basis for reviewing state court decisions or “federalizing” competency hearings.
Finally, it may be that Plaintiffs are relying on these specific examples to demonstrate the content of Missouri law. In other words, they may be arguing that the failure to preserve these individuals’ voting rights demonstrates Missouri law is incapable of doing so. This argument not only flies in the face of the statutory language cited elsewhere, but it also suffers from the logical fallacy known variously as “arguing general from the specific” or “hasty generalization.”
6The doctrine is named after the Supreme Court’s decisions in Rooker v. Fidelity Trust Co., 263 U.S. 413 (1923) and District of Columbia Court of Appeals v. Feldman, 460 U.S. 462 (1983).
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D. Constitutional Claims
Plaintiffs’ constitutional arguments rest on the same incomplete characterization of Missouri law as do their statutory arguments. They describe Missouri law as erecting a “voting ban [that] relies not on a specific determination about an individual’s competence to vote, but instead presumes that individuals lack the competence to vote based on about factors that are distinct from, and more complex than, the ability to vote.” Memorandum in Support of Plaintiffs’ Motion for Summary Judgment (Doc. # 133) at 33; see also id. at 32 (describing Missouri law as creating a “categorical deprivation” of the right to vote). As noted earlier, this is not an accurate description of Missouri law. A full order of protection may be issued with exceptions, including an exception preserving the right to vote. A partial order of protection may also preserve the right to vote. Regardless of the option employed, the order actually issued is based on the particular circumstances of the person involved and based on an individualized assessment by a judge. This is hardly the categorical or generalized prohibition Plaintiffs would have the Court believe exists.
As a final indicia of the flaw in Plaintiffs’ argument, the Court need look no further than Plaintiff Scaletty’s circumstances (which were alluded to earlier). Scaletty was placed under a full order of protection that specifically reserved his right to vote. Id. at 7. It is true that this aspect of the order was not honored until this suit was filed, but this does not demonstrate a flaw in the process for determining whether Scaletty (or anyone else) has the mental capacity to vote.7 To the contrary, it demonstrates Plaintiffs’ description of Missouri law is inaccurate, and individualized determinations are both permitted and made.
7The Court does not wish to minimize the importance of Scaletty’s right to vote. However, state and local officials’ failure to honor a state court’s order or misunderstanding of the content of state law does not demonstrate the unconstitutionality of the process or laws that led to the issuance of the order.
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III. CONCLUSION
For these reasons Plaintiffs’ Motion for Summary Judgment (Doc. # 132) is denied and Defendants’ Motion for Summary Judgment (Doc. # 136) is granted. IT IS SO ORDERED.

DATE: July 7, 2006

/s/ Ortrie D. Smith ORTRIE D. SMITH, JUDGE UNITED STATES DISTRICT COURT

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 IN THE UNITED STATES DISTRICT COURT FOR THE WESTERN DISTRICT OF MISSOURI
CENTRAL DIVISION

STEVEN M. PRYE, by his next friend, OFFICE OF

)

STATE GUARDIAN; BOB SCALETTY, by his )

next friend REBBECCA LAKE WOOD; PATRICK)

W. SHARP, by his next friend REBBECCA LAKE )

WOOD; individually; and MISSOURI

)

PROTECTION AND ADVOCACY SERVICES, )

INCORPORATED, a Missouri not-for-profit

)

organization;

)

Plaintiffs,

)

)

v.

)

)

MATT BLUNT, in his official capacity as Secretary of )

State of the State of Missouri; JEREMIAH W. )

(JAY) NIXON, in his official capacity as Attorney )

General of the State of Missouri; LEO G. (GARY) )

STOFF, JR. and JAMES P. O’TOOLE, in their )

official capacities as directors of the Board of

)

Election Commissioners for the City of St. Louis; )

MICHAEL A. LUEKEN, in his capacity as

)

secretary and member of the Board of Election )

Commissioners for the City of St. Louis; DERIO L. )

GAMBARO, in his capacity as chairperson of )

the Board of Election Commissioners for the City )

of St. Louis; ANGELA DA SILVA and YVONNE )

B. HUNTER, in their capacities as members of the )

Board of Election Commissioners for the City )

of St. Louis; BOARD OF ELECTION

)

COMMISSIONERS FOR THE CITY

)

OF ST. LOUIS; SHARON TURNER BLUE and )

RAY S. JAMES, in their official capacities as

)

directors of the of the Board of Elections for Kansas)

City; CHERYL LYNN BISBEE, in her capacity as )

secretary and member of the Board of Elections for )

Kansas City; LINDA S. TARPLEY, in her capacity )

as chairperson of Board of Elections for Kansas )

City; ROSA JAMES and BRUCE B. WAUGH, )

in their capacities as members of the Board of

)

Elections for Kansas City; and BOARD OF

)

ELECTION COMMISSIONERS FOR

)

KANSAS CITY;

)

Defendants.

)

No. 2:04-cv-04248-ODS
First Amended Complaint for Declarative and Injunctive Relief

INTRODUCTION 1. The Missouri Constitution prohibits from voting any individual who has “a
guardian of his or her estate or person by reason of mental incapacity[] appointed by a court of competent jurisdiction.” Mo. Const. Art. 8, § 2. By statute, Missouri restricts any person who has been “adjudged incapacitated” from registering to vote and from voting. V.A.M.S. 115.133. 2. Plaintiff Missouri Protection and Advocacy Service, Incorporated (MOPAS), protects and advocates for Missouri residents with disabilities and brings these claims on behalf of individuals who are competent to vote and would be eligible to vote in Missouri but for the fact that they have been adjudged incapacitated. 3. Plaintiffs Steven M. Prye (Prye), Bob Scaletty (Scaletty), and Patrick W. Sharp (Sharp) have been adjudged incapacitated and appointed a guardian; as a result they are prohibited from voting in Missouri. They would like to vote in future elections. 4. Plaintiffs seek a judgment declaring that the prohibition on registering to vote and voting violates the Due Process Clause of the Fourteenth Amendment to the Constitution of the United States, the Equal Protection Clause of the Fourteenth Amendment to the Constitution of the United States, the Americans with Disabilities Act, and section 504 of the Rehabilitation Act of 1973. In addition, Prye further seeks judgment declaring that the prohibition on registering to vote or voting as applied to him violates the Full Faith and Credit Clause of the Constitution of the United States.
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5. Plaintiffs seek a preliminary and permanent injunction enjoining Defendants from disenfranchising individuals who are competent to vote on the grounds that they have been appointed a guardian. JURISDICTION AND VENUE
6. This Court has subject matter jurisdiction over this action pursuant to 28 U.S.C. §§1331, 1343(a)(4).
7. Venue is proper in this Court under 28 U.S.C. §1391(b) and Local Rule 3.2(a)(2). The primary offices of Defendants Blunt and Nixon, from which they implement the challenged provisions of Missouri law, are located in Cole County. PARTIES
8. Prye brings this action individually and by his next friend, Office of State Guardian, pursuant to Federal Rule of Civil Procedure 17(c). Prye has been diagnosed with a mental illness, adjudged incapacitated, and appointed a guardian. Prye is substantially limited in the major life activities of self-care, taking care of his personal needs (e.g., eating, dressing, bathing, hygiene, household chores, managing money), and interactions with others. The record of Prye’s substantial limitation in major life activities extends back at least three years.
9. Scaletty brings this action individually and by his next friend, Rebbecca Lake Wood, pursuant to Federal Rule of Civil Procedure 17(c). Scaletty has been diagnosed with a mental illness, adjudged incapacitated, and appointed a guardian. Scaletty is substantially limited in major life activity of self care. He also has record of substantial limitation in self care.
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10. Sharp brings this action individually and by his next friend, Rebbecca Lake Wood, pursuant to Federal Rule of Civil Procedure 17(c). He has been diagnosed with a mental illness, adjudged incapacitated, and appointed a guardian. Sharp is substantially limited in major life activity of self care. He also has record of substantial limitation in self care.
11. MOPAS has its main office at 925 South Country Club Drive, Jefferson City, Missouri. MOPAS is a not-for-profit corporation duly organized under the laws of the State of Missouri and has been designated by the governor of the State of Missouri as the statewide protection and advocacy agency to protect and advocate for the legal and civil rights of those Missouri citizens who have mental disabilities pursuant to the Protection and Advocacy for Mentally Ill Individuals (PAIMI) Act, 42 U.S.C. § 10801, et seq., and the Developmental Disabilities Assistance and Bill of Rights Act (DD Act), 42 U.S.C. § 15001, et seq.; id. § 15041, et seq.
12. Pursuant to the PAIMI and DD Acts, as the designated statewide protection and advocacy agency for individuals with mental disabilities in the State of Missouri, MOPAS has the authority and the responsibility to pursue legal remedies or relief as might be necessary to protect and advocate for the rights of individuals with mental disabilities. 42 U.S.C. § 10801, et seq.
13. MOPAS brings this action to protect and advocate for the rights and interests of Missouri citizens who have been adjudged incapacitated and who are individuals with “mental illness” or “developmental disabilities” as those terms are defined at 42 U.S.C. §§ 10802 and 15002. These individuals are MOPAS’ constituents.
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14. The MOPAS constituents on whose behalf this action brought have significant disabilities that substantially limit one or more major life activities. These constituents are, therefore, individuals with disabilities for the purposes of the Americans with Disabilities Act and the Rehabilitation Act.
15. The MOPAS constituents on whose behalf this action is brought have each suffered, or will suffer, such injuries that would allow them to individually bring suit against defendants.
16. Defendant Matt Blunt is the Secretary of State of the State of Missouri. As Secretary of State, Defendant Blunt is responsible for such duties in relation to elections as the law provides. Mo. Const. Art. 4, § 14. He is the state’s chief election official. See V.A.M.S. 28.035; V.A.M.S. 115.136. Defendant Blunt is also required to notify local election authorities of persons within their respective jurisdictions who have been adjudged incapacitated. V.A.M.S. 115.195(3). Defendant Blunt has the responsibility to oversee the administration of elections in Missouri. Defendant Blunt’s primary office is located in Jefferson, Missouri.
17. Defendant Jeremiah W. (Jay) Nixon is the Attorney General of the State of Missouri. Defendant Nixon is charged with instituting proceedings to enforce Art. 8, § 2 of the Missouri Constitution and statutes that disenfranchise persons who have been adjudged incapacitated and appointed a guardian. See V.A.M.S. 27.060. Defendant Nixon’s primary office is located in Jefferson City, Missouri.
18. Defendants Leo G. (Gary) Stoff, Jr., and James P. O’Toole are directors of the Defendant Board of Election Commissioners for the City of St. Louis. Defendant Michael A. Lueken is secretary and a member of Defendant Board of Election
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Commissioners for the City of St. Louis. Defendant Derio L. Gambaro is chairperson of Defendant Board of Election Commissioners for the City of St. Louis. Defendants Angela da Silva and Yvonne B. Hunter are members of Defendant Board of Election Commissioners for the City of St. Louis. Defendant Board of Election Commissioners for the City of St. Louis is the election authority for St. Louis City. V.A.M.S. 115.015. 19. Defendants Sharon Turner Blue and Ray S. James are directors of the Defendant Board of Election Commissioners for Kansas City. Defendant Cheryl Lynn Bisbee is secretary and a member of the Defendant Board of Election Commissioners for Kansas City. Defendant Linda S. Tarpley is chairperson of the Defendant Board of Election Commissioners for Kansas City. Defendants Rosa James and Bruce B. Waugh are members of the Defendant Board of Election Commissioners for Kansas City. Defendant Board of Election Commissioner for Kansas City is the election authority for Kansas City. 20. By statute, the election authority is required to supervise the registration of voters within its jurisdiction and insure persons are qualified to register. V.A.M.S. 115.141.
MISSOURI CONSTITUTION AND STATUTES 21. The Missouri Constitution states, inter alia., “[N]o person who has a guardian of
his or her estate or person by reason of mental incapacity[] appointed by a court of competent jurisdiction … shall be entitled to vote.” Mo. Const. Art. 8, § 2. 22. By statute, the State of Missouri prohibits any persons who have been adjudged incapacitated by a court from registering to vote or voting. V.A.M.S. 115.133.
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23. Persons under guardianship, and persons who assist them, may be subject to criminal charges for casting or encouraging an illegal vote. V.A.M.S. 115.175; V.A.M.S. 115.631. A class one election offense is a felony punishable “by imprisonment of not more than five years or by fine of not less than two thousand five hundred dollars but not more than ten thousand dollars or by both such imprisonment and fine[.]” V.A.M.S. 115.631. What is more, the State of Missouri permanently declares persons convicted of a misdemeanor or felony related to the right of suffrage ineligible to register to vote or vote. V.A.M.S. 115.133(3). FACTS
24. Prye was born on November 13, 1952, in Memphis, Tennessee. He was one of the first black students to attend Central High School, the city’s best high school, during desegregation. He was at school on April 4, 1968 when—about a mile away-- Martin Luther King, Jr., was killed at the Lorraine Motel. Other students and some teachers celebrated. This event, amongst others, convinced Prye that he would do whatever it took to overcome disadvantage and discrimination. Upon graduating from high school, Prye received a scholarship from Yale University and completed his undergraduate studies in New Haven. After college Prye attended law school at Harvard, where he was on the staff of the Public Law Review. Prye began his legal career by working for two firms in New York City. He sometimes taught legal writing courses at New York University, and he was awarded an L.L.M. in taxation by N.Y.U. Prye left New York City because he wanted to teach fulltime. He taught several years at the Vermont Law School,
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then at the University of Illinois School of Law. During several of these years, Prye wrote a regular column in the Memphis newspaper on estate planning and related issues, including guardianship. It was at the University of Illinois and around age 49 that Prye’s condition deteriorated. He is now diagnosed with schizoaffective disorder. On December 12, 2003, Office of State Guardian was appointed as guardian of Prye’s person by the Circuit Court of Sangamon County, Illinois. The same Court appointed Office of State Guardian as guardian of Prye’s estate on March 11, 2004. Since April 2004, Prye has resided in St. Louis, Missouri. There is currently pending a petition for appointment of a guardian in the Missouri Circuit Court, Twenty-second Judicial Circuit, Probate Division, in St. Louis. 25. The Circuit Court of Sangamon County, Illinois, appointed a guardian without limitation and did not consider Prye’s competence to vote. Illinois law does not disenfranchise Illinois residents simply because they have been appointed a guardian. 10 ILCS 5/3-1 (qualifications to vote in Illinois); see Miller v. State Board of Elections, 1989 WL 36212 (N.D.Ill. 1989) (discussion of fact that mental incapacity is not a disqualification for voting under Illinois law). On October 28, 2004, the Court found that it did not have jurisdiction to limit Prye’s guardianship so as to reserve to Prye the right to vote since its appointment of a guardian had not stripped him of the right in the first instance. 26. The Circuit Court in St. Louis, in considering the case pending before it, is not authorized by Missouri law to consider Prye’s capacity to vote or to reserve to him the right to vote in the event a guardian is appointed. It is likely the Court
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will adjudge Prye incapacitated and appoint a guardian if it finds Prye is a person who is unable by reason of any physical or mental condition to receive and evaluate information or to communicate decisions to such an extent that he lacks capacity to meet essential requirements for food, clothing, shelter, safety, or other care such that serious physical injury, illness, or disease is likely to occur. See V.A.M.S. 475.010, et seq. The determinations the Court is required to make have no bearing on or relation to the capacity to vote. Indeed, the Court ruled evidence of Prye’s capacity for voting was irrelevant when it was offered at his guardianship hearing. 27. Prye is interested in politics. He has regularly voted in the past. He understands the nature of the political process and is competent to vote. He only learned that he was ineligible to vote in Missouri when he recently sought to register to vote. 28. On September 24, 2004, Prye attempted to register to vote in the State of Missouri by completing a Missouri Voter Registration Application. In order to make his application truthful, Prye struck the assertion contained on the form application that he had not been adjudged incapacitated. Defendant Stoff, on behalf of Defendant St. Louis Board of Election Commissioners, denied Prye’s application on the sole basis that Prye had been adjudged mentally incapacitated. 29. Scaletty is 54 years old and is under guardianship. He is diagnosed with paranoid schizophrenia. He voted consistently until the November 2, 2004 election. He did not vote in the 2004 general election because on or about September 7, 2004, he received a letter from the Defendant Board of Election Commissions for Kansas City telling him that he was ineligible to vote based on his guardianship
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status. For about 20 years, Scaletty worked as a construction electrician. He used to fly airplanes as a hobby. 30. Scaletty believes voting is important because it is the height of democracy and provides him a chance to voice his opinions. He understands the nature and purpose of elections. 31. Sharp is 41 years old. He has been diagnosed with schizophrenia and is under guardianship. He has lived in Kansas City since 1989. Sharp voted in the 2000 presidential election and regularly in prior elections. He did not vote in the November 2, 2004, general election because he had heard from other residents at the assisted-living facility where he resides that persons under guardianship could not vote and that it would be a crime to try to vote. 32. Sharp wants to vote so that he can voice his choices on key issues. He likes to hear what the candidates have to say and look at all sides of issues. He understands the nature and purpose of elections. 33. Plaintiffs meet all of the qualifications to vote in the State of Missouri except that they have been adjudged incapacitated and appointed guardians. Mo. Const. Art. 8, § 2; V.A.M.S. 115.133. The sole reason they are ineligible to register to vote and vote in Missouri is that they is under guardianship. 34. Plaintiffs were denied the right to vote in the November 2, 2004, general election. 35. As Missouri’s designated protection and advocacy system for individuals with mental disabilities, MOPAS represents individuals who, like the individual plaintiffs, have guardians appointed for them because of their mental disabilities.
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36. MOPAS expends time, money, and other resources on behalf of individuals with mental disabilities to address their disenfranchisement and to protect their rights.
37. Many MOPAS constituents who are under guardianship are competent to vote but are prohibited from voting based on the challenged statutory and constitutional provisions. COUNT I Violation of Due Process Clause
38. Plaintiffs repeat and re-allege each and every allegation in paragraphs 1 through 37 as if fully incorporated herein.
39. The Missouri Constitution and statutes deny Plaintiffs due process in violation of the Fourteenth Amendment to the Constitution of the United States by disenfranchising them without a process that requires proof that they lack the capacity to vote.
40. Missouri’s guardianship statutes do not provide due process because they provide neither notice nor the opportunity to be heard on the issue of voting. Any notice or opportunity to be heard that might be provided to some persons is without uniform standards, is arbitrary, and varies widely throughout the state. Further, Missouri deprives its residents of the right to vote based on guardianship proceedings of other states without regard for whether those states’ guardianship proceedings consider the individual’s capacity to vote.
41. Because the right to vote is a fundamental right and, thus, a fundamental liberty interest, the burden of proving that it should be taken away must rest with the state. Even if an individual could return to probate court to seek to have the right
11

to vote restored, the burden of proof would be inappropriately placed on the individual. 42. Because the fundamental right to vote is implicated, the Missouri Constitution and statutes that disenfranchise individuals who have been appointed a guardian should be reviewed under the strict scrutiny standard. 43. Plaintiffs are entitled to injunctive and declaratory relief because they are injured by Defendants’ acts and omissions that deprive them of the right to vote in violation of the Due Process Clause of the Fourteenth Amendment. Their claim is brought pursuant to 42 U.S.C. § 1983.
COUNT II Violation of Equal Protection Clause 45. Plaintiffs repeat and re-allege each and every allegation in paragraphs 1 through 37 as if fully incorporated herein. 46. The Equal Protection Clause of the Fourteenth Amendment provides, “[N]o state shall deny to any person within its jurisdiction the equal protection of the laws.” U.S. Const., amend. XIV. 47. Plaintiffs are similarly situated to individuals who have the capacity to vote but who have not been appointed a guardian. Because they have not been appointed a guardian, the individuals in the latter class retain the fundamental right to vote. 48. Defendants, by their acts and omissions under color of state law, are depriving Plaintiffs of rights secured by the Equal Protection Clause of the Fourteenth Amendment to the Constitution of the United States by disenfranchising them on the ground that they are under guardianship.
12

49. Voting is a fundamental right, yet Mo. Const. Art. 8, § 2 and the Missouri statues that disenfranchise Plaintiffs are not narrowly tailored to achieve a compelling state interest.
50. Plaintiffs are entitled to injunctive and declaratory relief because being denied the right to vote in violation of the Equal Protection Clause of the Fourteenth Amendment injures them. Their claim is brought pursuant to 42 U.S.C. § 1983. COUNT III Violation of Full Faith and Credit Clause
51. Plaintiffs repeat and re-allege each and every allegation in paragraphs 1 through 8, 16-18, 20-28, and 33-34 as if fully incorporated herein.
52. The Full Faith and Credit Clause of the Constitution provides, Full Faith and Credit shall be given in each State to the public Acts, Records, and judicial Proceedings of every other State. And the Congress may be general Laws prescribe the Manner in which such Acts, Records and Proceedings shall be proved, and the Effect thereof. U.S. Const., Art. IV, § 1.
53. The judgments of the Illinois state court finding Prye to be in need of a guardian and appointing a guardian qualify for recognition in the State of Missouri.
54. By applying Missouri Const., Art. 8, § 2, and V.A.M.S. 115.113 to Prye on the sole basis of the judgment of the Illinois Court that did not restrict his right to vote, Defendants disenfranchised him in a manner that violates the Full Faith and Credit Clause of the Constitution of the United States.
13

55. Prye is entitled to declaratory and injunctive relief because being denied the right to register to vote and to vote in a manner that violates the Full Faith and Credit Clause injured him. His claim is brought pursuant to 28 U.S.C. § 1738. COUNT IV Violation of Americans with Disabilities Act
56. Plaintiffs repeat and re-allege each and every allegation in paragraphs 1 through 37 as if fully incorporated herein.
57. Subtitle A of Title II of the Americans with Disabilities Act (ADA) prohibits public entities from discriminating against persons with disabilities in their programs, services, and activities. 42 U.S.C. §§ 12131-12134. Regulations implementing subtitle A are codified at 28 C.F.R. part 35.
58. Title II’s definition of “public entity” includes any state or local government or “any department, agency … or other instrumentality” of a state or local government. 42 U.S.C. § 12131(1)(A), (B).
59. Defendants are responsible for the operation of public entities for the purposes of Title II.
60. Plaintiffs have a disability within the meaning of 42 U.S.C. § 12102(2) and 28 C.F.R. § 35.104.
61. Plaintiffs are “qualified individual[s] with a disability” within the meaning of 42 U.S.C. § 12131(2) and 28 C.F.R. § 35.104 because they meet all voting eligibility requirements other than the requirement that they not be under guardianship.
62. The State of Missouri is a “public entity” within the meaning of 42 U.S.C. § 12131(1)(A) and 28 C.F.R. § 35.104.
63. Defendants subject Plaintiffs to discrimination by excluding them from voting in
14

federal, state, and local elections. The exclusion and discrimination violate 42 U.S.C. § 12132, which states:
Subject to the provisions of this subchapter, no qualified individual with a disability shall, by reason of such disability, be excluded from participation in or be denied the benefits of the services, programs, or activities of a public entity, or be subjected to discrimination by any such entity. 64. Defendants are violating the regulations promulgated under the ADA in the following respects: a. Defendants, on the basis of Plaintiffs’ disabilities, exclude them from participation in federal, state, and local elections, thereby subjecting him to discrimination. See 28 C.F.R. 35.130(a) (“No qualified individual with a disability shall, on the basis of disability, be excluded from participation in or be denied the benefits of the services, programs, or activities of a public entity, or be subjected to discrimination by any public entity.”). b. Defendants, on the basis of Plaintiffs’ disabilities, deny them the opportunity to participate in or benefit from their services, programs, and activities, to wit: voter registration and voting. See 28 C.F.R. 35.130(b)(1)(i)(“A public entity, in providing any aid, benefit, or service, may not, directly or through contractual, licensing, or other arrangements, on the basis of disability[,] [d]eny a qualified individual with a disability the opportunity to participate in or benefit from the aid, benefit, or service[.]”).
15

c. Defendants, on the basis of Plaintiffs’ disabilities, limit them in the enjoyment of their right to vote. See 28 C.F.R. 35.130(b)(1)(vii)(“A public entity, in providing any aid, benefit, or service, may not, directly or through contractual, licensing, or other arrangements, on the basis of disability[,] [o]therwise limit a qualified individual with a disability in the enjoyment of any right, privilege, advantage, or opportunity enjoyed by others receiving the aid, benefit, or service.”).
d. Defendants utilize criteria for eligibility to register to vote and to vote that have the effect of subjecting Plaintiffs to discrimination on the basis of disability. See 38 C.F.R. 35.130(b)(3)(i) (“A public entity may not, directly or through contractual or other arrangements, utilize criteria or methods of administration [t]hat have the effect of subjecting qualified individuals with disabilities to discrimination on the basis of disability[.]”).
e. Defendants impose eligibility criteria for voting that screen out or tend to screen out individuals with disabilities, including Prye, Scaletty, and Sharp, from fully and equally enjoying voting and elections even though the criteria are not necessary for voting and elections in Missouri. See 28 C.F.R. 35.130(b)(8) (“A public entity shall not impose or apply eligibility criteria that screen out or tend to screen out an individual with a disability or any class of individuals with disabilities from fully and equally enjoying any service, program, or activity, unless such criteria can be shown to be necessary for the provision of the service, program, or activity being offered.”).
65. As a result of Defendants’ violations of the ADA and its implementing
16

regulations, Defendants are liable to Plaintiffs for injunctive and declaratory relief pursuant to 42 U.S.C. § 12133.
COUNT V Violation of §504 of the Rehabilitation Act of 1973 66. Plaintiffs repeat and re-allege each and every allegation in paragraphs 1 through 37 as if fully incorporated herein. 67. Section 504 of the Rehabilitation Act of 1973, 29 U.S.C. § 794 (Section 504), provides, inter alia., No otherwise qualified individual with a disability in the United States … shall, solely by reason of her or his disability, be excluded from the participation in, be denied the benefits of, or be subjected to discrimination under any program or activity receiving Federal financial assistance or under any program or activity conducted by any Executive agency… 68. Plaintiffs are “qualified individual[s] with a disability” as defined by 29 U.S.C. §705(20). 69. Plaintiffs meet all of the qualifications to vote in the State of Missouri except for that he has been adjudged incapacitated and appointed a guardian. 70. Defendants receive federal assistance for the purposes of Section 504. 29 U.S.C. § 794(a). 71. Defendants discriminate against Plaintiffs by not allowing them to register to vote or to vote although registering to vote and voting fit within the definition of “program or activity” provided by section 504. 29 U.S.C. § 794(b)(1)(A). 72. As a result of Defendants’ violations of § 504 of the Rehabilitation Act of 1973,
17

Defendants are liable to Plaintiffs for injunctive and declaratory relief pursuant to 29 U.S.C. §794a.
RELIEF Plaintiffs request judgment in their favor and the following relief:
A. A preliminary and permanent injunction requiring Defendants to permit Prye, Scaletty, Sharp, and others similarly situated to register to vote, to allow Plaintiffs to vote in future elections, to give notice to persons under guardianship that they can register to vote, and to require notice and the opportunity to be heard before the right to vote may be lost in future guardianship proceedings;
B. A declaratory judgment holding that the Missouri Constitution and statutes that disenfranchise Plaintiffs on the ground that they are under guardianship or have been adjudged incapacitated are invalid because they violate the Due Process Clause of the Fourteenth Amendment, the Equal Protection Clause of the Fourteenth Amendment, the Full Faith and Credit Clause of the Constitution, the Americans with Disabilities Act, and Section 504 of the Rehabilitation Act of 1973;
C. Costs and reasonable attorneys fees under 42 U.S.C. §§ 1988, 12133, 12205; 29 U.S.C. § 791, et seq., and other relevant provisions of law;
D. Such other and further relief as this Court deems just and proper. Dated: December 6, 2004.
18

/s/ Anthony E. Rothert Anthony E. Rothert, #44827 Jeff M. Plesko John Wank GUARDIANSHIP AND ADVOCACY COMMISSION 4500 College Avenue, #100 Alton, IL 62002 (618) 474-5503 (618) 474-5517 (facsimile)
Ira A. Burnim Jennifer Mathis BAZELON CENTER FOR MENTAL HEALTH LAW 1101 15th Street, NW, Suite 1212 Washington, DC 20005 (202) 467-5730 (202) 223-0409 (facsimile)
Neil Bradley ACLU NATIONAL VOTING RIGHTS PROJECT 2725 Harris Tower 233 Peachtree Street NE Atlanta, GA 30303 (404) 523-2721 (404) 653-0331 (facsimile)
Denise D. Lieberman, #47013 AMERICAN CIVIL LIBERTIES UNION
OF EASTERN MISSOURI 4557 Laclede Ave. St. Louis, MO 63108 (314) 361-2111 (314) 361-3135 (facsimile)
Michael H. Finkelstein, #25468 David E. Hale, #54641 MISSOURI PROTECTION AND
ADVOCACY SERVICES 925 South Country Club Drive Jefferson City, MO 65109 (573) 893-3333 (573) 893-4231 (facsimile)
19

 
 U.S. District Court Western District of Missouri (Jefferson City) CIVIL DOCKET FOR CASE #: 2:04−cv−04248−ODS

CLOSED,PHV

Prye v. Blunt et al Assigned to: District Judge Ortrie D. Smith Case in other court: 8th Circuit, 06−03014 Cause: 29:0794 Job Discrimination (Handicap)
Plaintiff
Steven M. Prye individually and by his guardian, Office of State Guardian

Date Filed: 10/08/2004 Date Terminated: 07/07/2006 Jury Demand: None Nature of Suit: 441 Civil Rights: Voting Jurisdiction: Federal Question
represented by Alison Barkoff 1101 15th Street NW Suite 1212 Washington, DC 20005 (202) 467−5730 ext. 115 Fax: (202) 223−0409 Email: alisonb@bazelon.org LEAD ATTORNEY ATTORNEY TO BE NOTICED

Anthony E. Rothert American Civil Liberties Union of Missouri Foundation−StL 906 Olive Street Suite 1130 St. Louis, MO 63101 (314) 652−3114 Fax: (314) 652−3112 Email: trothert@aclu−mo.org LEAD ATTORNEY ATTORNEY TO BE NOTICED

David E. Hale Missouri Protection & Advocacy Services 925 South Country Club Drive Jefferson City, MO 65109 (573) 893−3333 Email: mopasstl5@sbcglobal.net LEAD ATTORNEY ATTORNEY TO BE NOTICED

Ferne P. Wolf Sowers & Wolf, LLC 530 Maryville Centre Drive Suite 460 St. Louis, MO 63141 (314)744−4010 Fax: (314) 744−4026 Email: fw@sowerswolf.com TERMINATED: 04/11/2005 LEAD ATTORNEY ATTORNEY TO BE NOTICED

Ira Abraham Burnim Bazelon Center for Mental Health Law 1101 15th Street, N.W. Suite 1212 Washington, DC 20005 (202) 467−5730 Fax: (202) 223−0409 Email: irab@bazelon.org
Case: 2:04-cv-4248 As of: 07/30/2017 02:47 PM CDT 1 of 17

LEAD ATTORNEY ATTORNEY TO BE NOTICED
James G. Felakos American Civil Liberties Union of Eastern Missouri 4557 Laclede Avenue St. Louis, MO 63108 (314) 361−3635 Fax: (314) 361−3135 Email: jfelakos@gmail.com LEAD ATTORNEY ATTORNEY TO BE NOTICED
James Michael Kirkland Kuckelman Torline Kirkland 10740 Nall Suite 250 Overland Park, KS 66221 913−948−8610 Fax: 913−948−8611 Email: jkirkland@ktk−law.com LEAD ATTORNEY ATTORNEY TO BE NOTICED
Jennifer Mathis Bazelon Center for Mental Health Law 1101 15th Street NW Suite 1212 Washington, DC 20005 (202) 467−5730 Fax: (202) 223−0409 Email: jenniferm@bazelon.org LEAD ATTORNEY ATTORNEY TO BE NOTICED
Neil Bradley 3276 Wynn Drive Avondale, GA 30002 4042985052 Email: neil.bradley.ga@gmail.com LEAD ATTORNEY ATTORNEY TO BE NOTICED
Jeffrey M. Plesko Guardianship & Advocacy Commission 7 Cottage Drive Anna, IL 62906 (618) 833−4897 Fax: (618) 833−5219 Email: jplesko@gac.state.il.us
John H. Wank Guardianship & Advocacy Commission 160 N. LaSalle Street Suite S−500 Chicago, IL 60601 (312) 793−5900 Fax: (312) 793−4311 Email: jwank@gac.state.il.us ATTORNEY TO BE NOTICED
Michael H. Finkelstein Missouri Protection & Advocacy 925 S Country Club Drive
Case: 2:04-cv-4248 As of: 07/30/2017 02:47 PM CDT 2 of 17

Jefferson City, MO 65109 (573) 893−3333 Fax: (573) 893−4231 Email: mopasjc2@earthlink.net ATTORNEY TO BE NOTICED

Plaintiff
Missouri Protection and Advocacy Services Missouri Protection and Advocacy Services, Incorporated, a Missouri not−for−profit organization.

represented by Alison Barkoff (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
James G. Felakos (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

James Michael Kirkland (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Michael H. Finkelstein (See above for address) LEAD ATTORNEY

Ferne P. Wolf (See above for address) TERMINATED: 04/11/2005 ATTORNEY TO BE NOTICED

Anthony E. Rothert (See above for address) ATTORNEY TO BE NOTICED

Plaintiff
Patrick W. Sharp Patrick W. Sharp, individually and by his next friend Rebbecca Lake Wood.

represented by Alison Barkoff (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

James G. Felakos (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

James Michael Kirkland (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Ferne P. Wolf (See above for address) TERMINATED: 04/11/2005 ATTORNEY TO BE NOTICED

Anthony E. Rothert (See above for address) ATTORNEY TO BE NOTICED

Plaintiff

Bob Scaletty Bob Scaletty, individually and by his next

represented by Alison Barkoff (See above for address)

Case: 2:04-cv-4248 As of: 07/30/2017 02:47 PM CDT 3 of 17

friend Rebbecca Lake Wood.

LEAD ATTORNEY ATTORNEY TO BE NOTICED
James G. Felakos (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
James Michael Kirkland (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Ferne P. Wolf (See above for address) TERMINATED: 04/11/2005 ATTORNEY TO BE NOTICED
Anthony E. Rothert (See above for address) ATTORNEY TO BE NOTICED

V. Defendant Matt Blunt in his official capacity as Secretary of State of the State of Missouri
Defendant Jeremiah Nixon in his official capacity as Attorney General of the State of Missouri
Defendant Leo G Stoff in his capacity as director of the Board of Elections for the City of St. Louis Defendant

represented by Michael Pritchett Missouri Dept of Labor & Industrial Relations P.O. Box 59 Jefferson City, MO 65104−0059 573/751−5992 Email: mike.pritchett@labor.mo.gov LEAD ATTORNEY ATTORNEY TO BE NOTICED
James R. McAdams Missouri Office of Administration P.O. Box 809 State Capitol Room 125 Jefferson City, MO 65102 (573) 751−1851 Fax: 573−751−1212 Email: jim.mcadams@oa.mo.gov TERMINATED: 12/17/2004
represented by Michael Pritchett (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
James R. McAdams (See above for address) TERMINATED: 12/17/2004

Case: 2:04-cv-4248 As of: 07/30/2017 02:47 PM CDT 4 of 17

James O'Toole in his capacity as director of the Board of Elections for the City of St. Louis

Defendant
Michael Lueken in his capacity as secretary and member of the Board of Elections for the City of St. Louis

Defendant
Derio Gambaro in his capacity as chairman of the Board of Elections for the City of St. Louis

Defendant
Angela Da Silva in his capacity as member of the Board of Elections for the City of St. Louis

Defendant
Yvonne Hunter in his capacity as member of the Board of Elections for the City of St. Louis

Defendant
Board of Election Commissioners for the City of St. Louis

represented by Rufus J. Tate , Jr. Tate Law Firm, LLC 230 Bemiston Avenue Suite 1470 St. Louis, MO 63105 (314) 827.5311 Fax: 855.825.8283 Email: tatelawfirm@gmail.com ATTORNEY TO BE NOTICED

Defendant
Bruce B Waugh in his capcity as a member of Board of Election Commissioners of Kansas City

represented by David B. Raymond Littler Mendelson, P.C. 1201 Walnut Street, Site 1450 Suite 1450 Kansas City, MO 64106 (816) 983−8156 Fax: (816) 983−8080 Email: david.raymond@huschblackwell.com LEAD ATTORNEY ATTORNEY TO BE NOTICED

F. Russell Millin 1100 Main Street Suite 2800 Kansas City, MO 64105 (816)842−1130 Fax: (816)472−6009 Email: rmillin@sbcglobal.net LEAD ATTORNEY ATTORNEY TO BE NOTICED

Defendant

Rosa James

represented by David B. Raymond

in her capcity as a member of Board of

(See above for address)

Case: 2:04-cv-4248 As of: 07/30/2017 02:47 PM CDT 5 of 17

Election Commissioners of Kansas City

LEAD ATTORNEY ATTORNEY TO BE NOTICED

F. Russell Millin (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Defendant
Linda S Tarpley in her capcity as a member of Board of Election Commissioners of Kansas City

represented by David B. Raymond (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

F. Russell Millin (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Defendant
Cheryl Bisbee in her capcity as a member of Board of Election Commissioners of Kansas City

represented by David B. Raymond (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

F. Russell Millin (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Defendant
Ray S. James in her capcity as a member of Board of Election Commissioners of Kansas City

represented by David B. Raymond (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

F. Russell Millin (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Defendant
Sharon Turner Blue in her capcity as a member of Board of Election Commissioners of Kansas City

represented by David B. Raymond (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

F. Russell Millin (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Defendant
Board of Election Commissioners of Kansas City

represented by David B. Raymond (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Case: 2:04-cv-4248

F. Russell Millin (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
As of: 07/30/2017 02:47 PM CDT 6 of 17

Intervenor United States of America

represented by Sarah E. Harrington U. S. Department of Justice Civil Rights Division Ben Franklin Station P. O. Box 14403 Washington, DC 20044−4403 (202) 305−7999 Fax: (202) 514−8490 Email: sarah.harrington@usdoj.gov LEAD ATTORNEY ATTORNEY TO BE NOTICED

Date Filed 10/08/2004 10/08/2004 10/08/2004 10/08/2004
10/12/2004
10/13/2004 10/14/2004 10/14/2004 10/14/2004 10/14/2004 10/14/2004 10/14/2004

# Docket Text
1 COMPLAINT against all defendants (Filing fee $150 receipt number 224656) Service due by 2/5/2005, filed by Anthony E. Rothert on behalf of Steven M. Prye. (Attachments: # 1 Civil Cover Sheet)(Price, Jackie) (Entered: 10/08/2004)
2 Motion and Order to appear pro hac vice granting appearance of Attorney Ferne P. Wolf for Steven M. Prye Fee paid; receipt number 224656. (Price, Jackie) (Entered: 10/08/2004)
3 MOTION for preliminary injunction filed by Ferne P. Wolf on behalf of all plaintiffs Suggestions in opposition/response due by 10/25/2004 (Wolf, Ferne) (Entered: 10/08/2004)
4 SUGGESTIONS in support re 3 MOTION for preliminary injunction filed by Ferne P. Wolf on behalf of Plaintiff Steven M. Prye. (Attachments: # 1 Exhibit Rejection Letter# 2 Exhibit Guardian Affidavit# 3 Exhibit Guiffra Affidavit# 4 Exhibit Han Affidavit# 5 Exhibit Sullivan Affidavit)(Related document(s) 3 ) (Wolf, Ferne) (Entered: 10/08/2004)
5 ORDER scheduling hearing on motion for preliminary injunction and directing Plaintiffs to effect service on Defendants. With hearing to be held on 10/19/2004 at 01:30 PM at Courtroom 8C, Kansas City (ODS). Signed by Judge Ortrie D. Smith on 10/12/2004. (Will−Fees, Eva) (Entered: 10/12/2004)
6 NOTICE of appearance by Michael H. Finkelstein on behalf of Steven M. Prye (Finkelstein, Michael) (Entered: 10/13/2004)
7 REQUEST FOR WAIVER of service sent to Matt Blunt on October 8, 2004 by Steven M. Prye. Waiver of Service due by 11/8/2004. (Rothert, Anthony) (Entered: 10/14/2004)
8 REQUEST FOR WAIVER of service sent to Jeremiah W. (Jay) Nixon on October 8, 2004 by Steven M. Prye. Waiver of Service due by 11/8/2004. (Rothert, Anthony) (Entered: 10/14/2004)
9 REQUEST FOR WAIVER of service sent to Leo G. Stoff on October 8, 2004 by Steven M. Prye. Waiver of Service due by 11/8/2004. (Rothert, Anthony) (Entered: 10/14/2004)
10 REQUEST FOR WAIVER of service sent to James O'Toole on October 8, 2004 by Steven M. Prye. Waiver of Service due by 11/8/2004. (Rothert, Anthony) (Entered: 10/14/2004)
11 REQUEST FOR WAIVER of service sent to Michael LUEKEN on October 8, 2004 by Steven M. Prye. Waiver of Service due by 11/8/2004. (Rothert, Anthony) (Entered: 10/14/2004)
12 REQUEST FOR WAIVER of service sent to Angela da Silva on October 8, 2004 by Steven M. Prye. Waiver of Service due by 11/8/2004. (Rothert, Anthony) (Entered: 10/14/2004)

Case: 2:04-cv-4248 As of: 07/30/2017 02:47 PM CDT 7 of 17

10/14/2004 10/14/2004 10/14/2004 10/15/2004 10/16/2004
10/18/2004 10/20/2004 10/20/2004 10/20/2004
10/20/2004 10/20/2004
10/20/2004 10/20/2004 10/21/2004 10/21/2004

13 REQUEST FOR WAIVER of service sent to Yvonne Hunter on October 8, 2004 by Steven M. Prye. Waiver of Service due by 11/8/2004. (Rothert, Anthony) (Entered: 10/14/2004)
14 REQUEST FOR WAIVER of service sent to Board of Election Commissioner for the City of St. Louis on October 8, 2004 by Steven M. Prye. Waiver of Service due by 11/8/2004. (Rothert, Anthony) (Entered: 10/14/2004)
15 REQUEST FOR WAIVER of service sent to Derio L. Gambaro on Ocotber 8, 2004 by Steven M. Prye. Waiver of Service due by 11/8/2004. (Rothert, Anthony) (Entered: 10/14/2004)
16 MOTION to vacate preliminary injunction hearing filed by James R. McAdams on behalf of Matt Blunt, Jeremiah Nixon Suggestions in opposition/response due by 11/1/2004 unless otherwise directed by the court (Attachments: # 1 Exhibit A − C)(McAdams, James) (Entered: 10/15/2004)
17 RESPONSE to motion re 16 MOTION to vacate preliminary injunction hearing of Blunt and Nixon filed by Anthony E. Rothert on behalf of Plaintiff Steven M. Prye. Reply suggestions due by 11/1/2004 unless otherwise directed by the court (Attachments: # 1 Affidavit Steven M. Prye)(Related document(s) 16 ) (Rothert, Anthony) (Entered: 10/16/2004)
18 ORDER granting in part and denying in part 16 Defendants' Motion to Vacate Preliminary Injunction Hearing and rescheduling hearing on Motion for Preliminary Injunction for 9:00 a.m. on 10/21/2004. Signed by Judge Ortrie D. Smith on 10/18/2004. (Will−Fees, Eva) (Entered: 10/18/2004)
19 Motion and Order to appear pro hac vice granting appearance of Attorney Jennifer Mathis for Steven M. Prye Fee paid; receipt number 224700. (Price, Jackie) (Entered: 10/20/2004)
20 Motion and Order to appear pro hac vice granting appearance of Attorney Neil Bradley for Steven M. Prye Fee paid; receipt number 224701. (Price, Jackie) (Entered: 10/20/2004)
21 MOTION for leave to file excess pages filed by James R. McAdams on behalf of Matt Blunt, Jeremiah Nixon Suggestions in opposition/response due by 11/4/2004 unless otherwise directed by the court (Attachments: # 1 Defendants' Suggestions in Opposition to Plaintiff's Motion for Preliminary Injunction# 2 Exhibit A−D)(McAdams, James) (Entered: 10/20/2004)
22 ORDER granting 21 motion for leave to file excess pages signed by Judge Ortrie D. Smith on 10/20/2004. (Kitsmiller, Julia) (Entered: 10/20/2004)
23 MOTION to amend/correct filed by James R. McAdams on behalf of Matt Blunt, Jeremiah Nixon Suggestions in opposition/response due by 11/4/2004 unless otherwise directed by the court (Attachments: # 1 Defendants' Suggestions in Opposition to Plaintiff's Motion for Preliminary Injunction# 2 Appendix A − D)(McAdams, James) (Entered: 10/20/2004)
24 REPLY SUGGESTIONS to motion re 3 MOTION for preliminary injunction filed by Anthony E. Rothert on behalf of Plaintiff Steven M. Prye. (Attachments: # 1 Affidavit Kathleen A. Eddy)(Related document(s) 3 ) (Rothert, Anthony) (Entered: 10/20/2004)
25 RESPONSE to motion re 23 MOTION to amend/correct of Defendants Blunt and Nixon filed by Anthony E. Rothert on behalf of Plaintiff Steven M. Prye. Reply suggestions due by 11/4/2004 unless otherwise directed by the court (Related document(s) 23 ) (Rothert, Anthony) (Entered: 10/20/2004)
26 ORDER granting 23 Defendants' Motion for Leave to File Amended Suggestions in Opposition to Motion for Preliminary Injunction. Signed by Judge Ortrie D. Smith on 10/21/2004. (Will−Fees, Eva) (Entered: 10/21/2004)
27 Motion and Order to appear pro hac vice granting appearance of Attorney John H. Wank for Steven M. Prye Fee paid; receipt number 221826. (McDowell, Shelly) (Entered: 10/21/2004)

Case: 2:04-cv-4248 As of: 07/30/2017 02:47 PM CDT 8 of 17

10/21/2004

28 Motion and Order to appear pro hac vice granting appearance of Attorney Jeffrey M. Plesko for Steven M. Prye Fee paid; receipt number 221826. (McDowell, Shelly) (Entered: 10/21/2004)

10/21/2004

29 MOTION to amend/correct the attachment to plaintiffs' reply suggestions regarding plaintiff's motion for preliminary injunction filed by Anthony E. Rothert on behalf of Steven M. Prye Suggestions in opposition/response due by 11/5/2004 unless otherwise directed by the court (Attachments: # 1 Affidavit Kathleen A. Eddy)(Rothert, Anthony) (Entered: 10/21/2004)

10/21/2004

33 Minute Entry for proceedings held before Judge Ortrie D. Smith : HEARING held on 10/21/2004 (Court Reporter Cynthia Johnson.) (Will−Fees, Eva) (Entered: 10/25/2004)

10/24/2004

30 MOTION to seal document s filed by Anthony E. Rothert on behalf of all plaintiffs Suggestions in opposition/response due by 11/8/2004 unless otherwise directed by the court (Rothert, Anthony) (Entered: 10/24/2004)

10/24/2004

31 PROPOSED FINDINGS OF FACT by Steven M. Prye (proposed findings of fact and conclusions of law related to plaintiffs' motoin for preliminary injunction). (Rothert, Anthony) (Entered: 10/24/2004)

10/25/2004

32 ORDER granting 29 Plaintiffs' Motion for Leave to File Reformatted Attachment to Plaintiffs' reply suggestions. Signed by Judge Ortrie D. Smith on 10/25/2004. (Will−Fees, Eva) (Entered: 10/25/2004)

10/25/2004 34 PROPOSED FINDINGS OF FACT by Matt Blunt, Jeremiah Nixon Memorandum and Order. (McAdams, James) (Entered: 10/25/2004)

10/25/2004

35 AFFIDAVIT re 24 Reply Suggestions to Motion, 32 Order on Motion to Amend/Correct (Reformatted Affidavit of Kathleen A. Eddy in support of 24 reply to suggestions regarding motion for preliminary hearing, as permitted by order granting leave to file a reformatted affidavit 32 ) by Steven M. Prye. (Related document(s) 24 , 32 ) (Rothert, Anthony) (Entered: 10/25/2004)

10/25/2004 36 ORDER granting 30 motion to seal certain documents. Signed by Judge Ortrie D. Smith on 10/25/2004. (Will−Fees, Eva) (Entered: 10/25/2004)

10/26/2004 37 ORDER denying 3 Motion for preliminary injunction signed by Judge Ortrie D. Smith on 10/26/2004. (Kitsmiller, Julia) (Entered: 10/26/2004)

10/29/2004

38 Emergency MOTION for reconsideration re 37 Order on Motion for Preliminary Injunction filed by Anthony E. Rothert on behalf of all plaintiffs Suggestions in opposition/response due by 11/15/2004 unless otherwise directed by the court (Attachments: # 1 Exhibit A)(Related document(s) 37 ) (Rothert, Anthony) (Entered: 10/29/2004)

11/01/2004

39 MOTION to amend/correct 38 Emergency MOTION for reconsideration re 37 Order on Motion for Preliminary Injunction denying 3 plaintiffs' motion for preliminary injuction filed by Anthony E. Rothert on behalf of all plaintiffs Suggestions in opposition/response due by 11/16/2004 unless otherwise directed by the court (Attachments: # 1 Proposed Amended Motion)(Related document(s) 38 ) (Rothert, Anthony) (Entered: 11/01/2004)

11/01/2004

40 SUGGESTIONS in opposition re 38 Emergency MOTION for reconsideration re 37 Order on Motion for Preliminary Injunction, 39 MOTION to amend/correct 38 Emergency MOTION for reconsideration re 37 Order on Motion for Preliminary Injunction denying 3 plaintiffs' motion for preliminary injuction filed by James R. McAdams on behalf of Defendants Matt Blunt, Jeremiah Nixon. Reply suggestions due by 11/16/2004 unless otherwise directed by the court (Related document(s) 38 , 39 ) (McAdams, James) (Entered: 11/01/2004)

11/01/2004 41 ORDER granting 39 motion for leave to file an amended motion to reconsider. Signed by Judge Ortrie D. Smith on 11/01/2004. (Will−Fees, Eva) (Entered: 11/01/2004)

11/01/2004

42 Amended MOTION for reconsideration re 37 Order on Motion for Preliminary Injunction denying 3 plaintiffs' motion for preliminary injunction filed by Anthony E. Rothert on behalf of all plaintiffs Suggestions in opposition/response due by 11/16/2004 unless otherwise directed by the court (Attachments: # 1 Exhibit

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11/01/2004 11/02/2004 11/04/2004 11/04/2004 11/16/2004 11/29/2004 11/30/2004 11/30/2004 11/30/2004 11/30/2004 11/30/2004 11/30/2004 12/06/2004 12/06/2004 12/06/2004
12/06/2004 12/06/2004
12/06/2004

A)(Related document(s) 37 ) (Rothert, Anthony) (Entered: 11/01/2004)
43 ORDER denying 42 amended motion for reconsideration signed by Judge Ortrie D. Smith on 11/01/2004. (Kitsmiller, Julia) (Entered: 11/01/2004)
44 Motion and Order to appear pro hac vice granting appearance of Attorney Ira Abraham Burnim for Steven M. Prye Fee paid; receipt number 222445. (Revis, Christi) (Entered: 11/02/2004)
45 WAIVER OF SERVICE returned executed by Steven M. Prye. Matt Blunt waiver sent on 10/8/2004, answer due 12/7/2004. (Rothert, Anthony) (Entered: 11/04/2004)
46 WAIVER OF SERVICE returned executed by Steven M. Prye. Jeremiah Nixon waiver sent on 10/8/2004, answer due 12/7/2004. (Rothert, Anthony) (Entered: 11/04/2004)
SUMMONS ISSUED as to Board of Election Commissioners for the City of St. Louis, Angela Da Silva, Derio Gambaro, Yvonne Hunter, Michael Lueken, James O'Toole, Leo G Stoff. (Price, Jackie) (Entered: 11/16/2004)
47 RETURN OF SERVICE of complaint executed by Steven M. Prye. Leo G Stoff served on 11/19/2004, answer due 12/9/2004. (Rothert, Anthony) (Entered: 11/29/2004)
48 RETURN OF SERVICE of complaint executed by Steven M. Prye. Board of Election Commissioners for the City of St. Louis served on 11/19/2004, answer due 12/9/2004. (Rothert, Anthony) (Entered: 11/30/2004)
49 RETURN OF SERVICE of complaint executed by Steven M. Prye. James O'Toole served on 11/19/2004, answer due 12/9/2004. (Rothert, Anthony) (Entered: 11/30/2004)
50 RETURN OF SERVICE of complaint executed by Steven M. Prye. Michael Lueken served on 11/19/2004, answer due 12/9/2004. (Rothert, Anthony) (Entered: 11/30/2004)
51 RETURN OF SERVICE of complaint executed by Steven M. Prye. Derio Gambaro served on 11/19/2004, answer due 12/9/2004. (Rothert, Anthony) (Entered: 11/30/2004)
52 RETURN OF SERVICE of complaint executed by Steven M. Prye. Angela Da Silva served on 11/19/2004, answer due 12/9/2004. (Rothert, Anthony) (Entered: 11/30/2004)
53 RETURN OF SERVICE of complaint executed by Steven M. Prye. Yvonne Hunter served on 11/19/2004, answer due 12/9/2004. (Rothert, Anthony) (Entered: 11/30/2004)
54 AMENDED COMPLAINT against all defendants all defendants. filed by Anthony E. Rothert on behalf of Missouri Protection and Advocacy Services, Patrick W. Sharp, Bob Scaletty, Steven M. Prye.(Rothert, Anthony) (Entered: 12/06/2004)
55 Doc #55 has been deleted because it was filed in duplication of doc #54. Modified 12/7/2004 (James, Carrie). (Entered: 12/06/2004)
56 CERTIFICATE of counsel re 55 Amended Complaint,,, 54 Amended Complaint certificate of service of first amended complaint for declaratory and injunctive relief by Anthony E. Rothert on behalf of all plaintiffs (Rothert, Anthony) (Entered: 12/06/2004)
57 REQUEST FOR WAIVER of service sent to Sharon Turner Blue on December 6, 2004 by Steven M. Prye, Bob Scaletty, Patrick W. Sharp. Waiver of Service due by 1/5/2005. (Rothert, Anthony) (Entered: 12/06/2004)
58 REQUEST FOR WAIVER of service sent to Cheryl Lynn Bisbee on December 6, 2004 by Missouri Protection and Advocacy Services, Steven M. Prye, Bob Scaletty, Patrick W. Sharp. Waiver of Service due by 1/5/2005. (Rothert, Anthony) (Entered: 12/06/2004)
59 REQUEST FOR WAIVER of service sent to Kansas City Board of Election Commissioners on December 6, 2004 by Missouri Protection and Advocacy Services,

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12/07/2004 12/07/2004 12/07/2004 12/07/2004 12/10/2004 12/16/2004 12/16/2004 12/21/2004 12/21/2004
01/31/2005 02/04/2005
02/14/2005 04/01/2005 04/04/2005

Steven M. Prye, Bob Scaletty, Patrick W. Sharp. Waiver of Service due by 1/5/2005. (Rothert, Anthony) (Entered: 12/06/2004)
60 REQUEST FOR WAIVER of service sent to Ray S. James on December 6, 2004 by Missouri Protection and Advocacy Services, Steven M. Prye, Bob Scaletty, Patrick W. Sharp. Waiver of Service due by 1/5/2005. (Rothert, Anthony) (Entered: 12/07/2004)
61 REQUEST FOR WAIVER of service sent to Rosa James on December 6, 2004 by Missouri Protection and Advocacy Services, Steven M. Prye, Bob Scaletty, Patrick W. Sharp. Waiver of Service due by 1/5/2005. (Rothert, Anthony) (Entered: 12/07/2004)
62 REQUEST FOR WAIVER of service sent to Bruce B. Waugh on December 6, 2004 by Missouri Protection and Advocacy Services, Steven M. Prye, Bob Scaletty, Patrick W. Sharp. Waiver of Service due by 1/5/2005. (Rothert, Anthony) (Entered: 12/07/2004)
63 REQUEST FOR WAIVER of service sent to LINDA S. TARPLEY on December 6, 2004 by Missouri Protection and Advocacy Services, Steven M. Prye, Bob Scaletty, Patrick W. Sharp. Waiver of Service due by 1/5/2005. (Rothert, Anthony) (Entered: 12/07/2004)
SUMMONS ISSUED as to Cheryl Bisbee, Sharon Turner Blue, Board of Election Commissioners of Kansas City, Ray S. James, Rosa James, Linda S Tarpley, Bruce B Waugh and returned to counsel for plaintiff. (James, Carrie) (Entered: 12/10/2004)
64 ANSWER to Amended Complaint filed by James R. McAdams on behalf of Defendants Matt Blunt, Jeremiah Nixon. (Attachments: # 1 Exhibit A# 2 Exhibit B)(McAdams, James) (Entered: 12/16/2004)
65 NOTICE of filing by Matt Blunt, Jeremiah Nixon Defendants' Withdrawal and Substitution of Counsel (McAdams, James) (Entered: 12/16/2004)
66 NOTICE of appearance by David B. Raymond on behalf of Bruce B Waugh, Rosa James, Linda S Tarpley, Cheryl Bisbee, Ray S. James, Sharon Turner Blue, Board of Election Commissioners of Kansas City (Raymond, David) (Entered: 12/21/2004)
67 WAIVER OF SERVICE returned executed by Bruce B Waugh, Rosa James, Linda S Tarpley, Cheryl Bisbee, Ray S. James, Sharon Turner Blue, Board of Election Commissioners of Kansas City. Bruce B Waugh waiver sent on 12/6/2004, answer due 2/4/2005; Rosa James waiver sent on 12/6/2004, answer due 2/4/2005; Linda S Tarpley waiver sent on 12/6/2004, answer due 2/4/2005; Cheryl Bisbee waiver sent on 12/6/2004, answer due 2/4/2005; Ray S. James waiver sent on 12/6/2004, answer due 2/4/2005; Sharon Turner Blue waiver sent on 12/6/2004, answer due 2/4/2005; Board of Election Commissioners of Kansas City waiver sent on 12/6/2004, answer due 2/4/2005. (Raymond, David) (Entered: 12/21/2004)
68 Rule 16 Noticeproposed scheduling order due by 4/8/2005, rule 26 conference due by 3/25/2005,. Signed by Judge Ortrie D. Smith on 01/31/2005. (Will−Fees, Eva) (Entered: 01/31/2005)
69 ANSWER to Complaint ANSWER OF KANSAS CITY ELECTION BOARD DEFENDANTS TO FIRST AMENDED COMPLAINT FOR DECLARATORY AND INJUNCTIVE RELIEF filed by David B. Raymond on behalf of Defendants Bruce B Waugh, Rosa James, Linda S Tarpley, Cheryl Bisbee, Ray S. James, Sharon Turner Blue, Board of Election Commissioners of Kansas City.(Raymond, David) (Entered: 02/04/2005)
70 DISCLOSURE OF CORPORATE INTERESTS filed by Michael H. Finkelstein on behalf of Plaintiff Missouri Protection and Advocacy Services.(Finkelstein, Michael) (Entered: 02/14/2005)
71 CERTIFICATE OF SERVICE OF INITIAL RULE 26 DISCLOSURES filed by Michael Pritchett on behalf of Defendants Matt Blunt, Jeremiah Nixon.(Pritchett, Michael) (Entered: 04/01/2005)
72 NOTICE of appearance by James Michael Kirkland on behalf of Missouri Protection and Advocacy Services, Patrick W. Sharp, Bob Scaletty, Steven M. Prye (Kirkland, James) (Entered: 04/04/2005)

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04/04/2005
04/07/2005
04/11/2005 04/11/2005 04/12/2005 04/12/2005 04/15/2005 04/15/2005
06/22/2005 06/27/2005
07/07/2005
07/07/2005 07/20/2005 07/21/2005 08/01/2005
08/02/2005 08/22/2005

73 CERTIFICATE OF SERVICE OF INITIAL RULE 26 DISCLOSURES filed by James Michael Kirkland on behalf of Plaintiffs Missouri Protection and Advocacy Services, Patrick W. Sharp, Bob Scaletty, Steven M. Prye.(Kirkland, James) (Entered: 04/04/2005)
74 CERTIFICATE OF SERVICE OF INITIAL RULE 26 DISCLOSURES filed by David B. Raymond on behalf of Defendants Bruce B Waugh, Rosa James, Linda S Tarpley, Cheryl Bisbee, Ray S. James, Sharon Turner Blue, Board of Election Commissioners of Kansas City.(Raymond, David) (Entered: 04/07/2005)
75 MOTION to withdraw as attorney filed byFerne P. Wolf on behalf of all plaintiffs Suggestions in opposition/response due by 4/26/2005 unless otherwise directed by the court (Wolf, Ferne) (Entered: 04/11/2005)
76 ORDER granting 75 motion to withdraw as attorney. Attorney Ferne P. Wolf terminated. Signed by Judge Ortrie D. Smith on 04/11/1005. (Will−Fees, Eva) (Entered: 04/11/2005)
77 ORDER TO SHOW CAUSE Show Cause Response due by 4/27/2005. Signed by Judge Ortrie D. Smith on 04/12/2005. (Will−Fees, Eva) (Entered: 04/12/2005)
78 PROPOSED SCHEDULING ORDER by Missouri Protection and Advocacy Services, Patrick W. Sharp, Bob Scaletty, Steven M. Prye. (Kirkland, James) (Entered: 04/12/2005)
79 RULES OF TRIAL. Signed by Judge Ortrie D. Smith on 04/15/2005. (Will−Fees, Eva) (Entered: 04/15/2005)
80 SCHEDULING ORDER: Discovery due by 12/15/2005. Pretrial Conference set for 4/13/2006 10:00 AM via telephone before Ortrie Smith. Bench Trial set for 5/15/2006 08:30 AM in Courtroom 8C, Kansas City (ODS) before Ortrie Smith.Dispositive Motions due by 1/15/2006 Signed by Judge Ortrie D. Smith on 04/15/2005. (Will−Fees, Eva) (Entered: 04/15/2005)
81 NOTICE of appearance by Rufus J. Tate, Jr on behalf of Board of Election Commissioners for the City of St. Louis (Tate, Rufus) (Entered: 06/22/2005)
82 CERTIFICATE OF SERVICE by Missouri Protection and Advocacy Services, Patrick W. Sharp, Bob Scaletty, Steven M. Prye of request for documents and interrogatories filed by James Michael Kirkland on behalf of Plaintiffs Missouri Protection and Advocacy Services, Patrick W. Sharp, Bob Scaletty, Steven M. Prye.(Kirkland, James) (Entered: 06/27/2005)
83 MOTION for extension of time for submission of expert reports along with suggestions in support (unopposed) filed byJames Michael Kirkland on behalf of all plaintiffs Suggestions in opposition/response due by 7/22/2005 unless otherwise directed by the court (Kirkland, James) (Entered: 07/07/2005)
84 ORDER granting 83 motion for extension of time. Signed by Judge Ortrie D. Smith on 07/07/2005. (Will−Fees, Eva) (Entered: 07/08/2005)
85 STIPULATION of dismissal Without Prejudice as to Certain Parties by Missouri Protection and Advocacy Services, Patrick W. Sharp, Bob Scaletty, Steven M. Prye. (Kirkland, James) (Entered: 07/20/2005)
86 PARTIAL STIPULATION AND ORDER. Signed by Judge Ortrie D. Smith on 07/21/2005. (Will−Fees, Eva) (Entered: 07/21/2005)
87 MOTION for extension of time In Due Date of Discovery Responses and in Identification of Business Records the Parties Intend to Self−Authenticate filed byMichael Pritchett on behalf of Matt Blunt, Jeremiah Nixon Suggestions in opposition/response due by 8/16/2005 unless otherwise directed by the court (Pritchett, Michael) (Entered: 08/01/2005)
88 ORDER granting 87 motion for extension of time. Signed by Judge Ortrie D. Smith on 08/02/2005. (Will−Fees, Eva) (Entered: 08/02/2005)
89 CERTIFICATE OF SERVICE by Matt Blunt, Jeremiah Nixon filed by Michael Pritchett on behalf of Defendants Matt Blunt, Jeremiah Nixon.(Pritchett, Michael)

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08/31/2005 08/31/2005 08/31/2005 09/01/2005 09/01/2005 09/02/2005 09/12/2005 09/12/2005

(Entered: 08/22/2005)
90 MOTION for protective order (unopposed) filed byJames Michael Kirkland on behalf of all plaintiffs Suggestions in opposition/response due by 9/15/2005 unless otherwise directed by the court (Kirkland, James) (Entered: 08/31/2005)
91 CERTIFICATE OF SERVICE by all plaintiffs of Designation of Business Records filed by James Michael Kirkland on behalf of Plaintiffs Missouri Protection and Advocacy Services, Patrick W. Sharp, Bob Scaletty, Steven M. Prye.(Kirkland, James) (Entered: 08/31/2005)
92 CERTIFICATE OF SERVICE by Matt Blunt, Jeremiah Nixon filed by Michael Pritchett on behalf of Defendants Matt Blunt, Jeremiah Nixon.(Pritchett, Michael) (Entered: 08/31/2005)
93 CERTIFICATE OF SERVICE by all plaintiffs of Disclosures of Expert Witnesses filed by James Michael Kirkland on behalf of Plaintiffs Missouri Protection and Advocacy Services, Patrick W. Sharp, Bob Scaletty, Steven M. Prye.(Kirkland, James) (Entered: 09/01/2005)
94 CERTIFICATE OF SERVICE by all plaintiffs of First Supplemental Disclosures filed by James Michael Kirkland on behalf of Plaintiffs Missouri Protection and Advocacy Services, Patrick W. Sharp, Bob Scaletty, Steven M. Prye.(Kirkland, James) (Entered: 09/01/2005)
95 ORDER granting 90 motion for protective order. Signed by Judge Ortrie D. Smith on 09/02/2005. (Will−Fees, Eva) (Entered: 09/02/2005)
96 Motion to allow Alison Barkoff to appear pro hac vice (Pro Hac fee $50 receipt number 237556) filed byJames Michael Kirkland on behalf of all plaintiffs (Bax, Laura) (Entered: 09/12/2005)
ORDER granting 96 motion to appear pro hac vice approved by Clerk of Court. Attorney Alison Barkoff for plaintiffs.

This is a text only entry and will serve as authorization for the pro hac participation by the attorney. No document is attached.

09/22/2005 09/22/2005 10/31/2005 11/01/2005
11/01/2005 11/18/2005 11/18/2005

(Bax, Laura) (Entered: 09/12/2005)
97 STIPULATION of dismissal as moot the claims of Steven M. Prye by Steven M. Prye. (Rothert, Anthony) (Entered: 09/22/2005)
98 Order of Dismissalpursuant to Stipulation of the parties. Signed by Judge Ortrie D. Smith on 09/22/2005. (Will−Fees, Eva) (Entered: 09/23/2005)
99 CERTIFICATE OF SERVICE by Matt Blunt, Jeremiah Nixon of mailing Defendants' Request for Production of Documents, filed by Michael Pritchett on behalf of Defendants Matt Blunt, Jeremiah Nixon.(Pritchett, Michael) (Entered: 10/31/2005)
100 MOTION for extension of time to complete discovery EXT. OF DEADLINE FOR DESIGNATION OF EXPERT WITNESSES AND SUBMISSIONS OF EXPERT REPORTS AND OF DISCOVERY DEADLINE filed byMichael Pritchett on behalf of Matt Blunt, Jeremiah Nixon Suggestions in opposition/response due by 11/16/2005 unless otherwise directed by the court (Pritchett, Michael) (Entered: 11/01/2005)
101 ORDER granting 100 motion for extension of time to complete discovery on or before 01/05/2006. Signed by Judge Ortrie D. Smith on 11/01/2005. (Will−Fees, Eva) (Entered: 11/02/2005)
102 NOTICE to take deposition of Betsy Byers filed by James Michael Kirkland on behalf of Plaintiff Steven M. Prye.(Kirkland, James) Modified on 11/18/2005 to correct name of deposed, as it was entered in error (Beard, Melanie). (Entered: 11/18/2005)
103 NOTICE to take deposition of The Missouri Secretary of State filed by James Michael Kirkland on behalf of Plaintiff Steven M. Prye.(Kirkland, James) (Entered: 11/18/2005)

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11/22/2005 11/28/2005
12/02/2005 12/05/2005 12/07/2005
12/15/2005 12/15/2005

104 DESIGNATION OF DEFENDANTS' EXPERT WITNESS by Matt Blunt, Jeremiah Nixon. (Pritchett, Michael) (Entered: 11/22/2005)
105 CERTIFICATE OF SERVICE by all plaintiffs Plaintiff's Second Request for Production of Documents filed by Anthony E. Rothert on behalf of Plaintiffs Missouri Protection and Advocacy Services, Patrick W. Sharp, Bob Scaletty, Steven M. Prye.(Rothert, Anthony) (Entered: 11/28/2005)
106 CERTIFICATE OF SERVICE by Matt Blunt, Jeremiah Nixon of Mailing their Supplement to Disclosures filed by Michael Pritchett on behalf of Defendants Matt Blunt, Jeremiah Nixon.(Pritchett, Michael) (Entered: 12/02/2005)
107 NOTICE to take deposition of Mandi O'Neal filed by James Michael Kirkland on behalf of Plaintiffs Missouri Protection and Advocacy Services, Patrick W. Sharp, Bob Scaletty, Steven M. Prye.(Kirkland, James) (Entered: 12/05/2005)
108 CERTIFICATE OF SERVICE by all plaintiffs of Second Request for Production of Documents filed by James Michael Kirkland on behalf of Plaintiffs Missouri Protection and Advocacy Services, Patrick W. Sharp, Bob Scaletty, Steven M. Prye.(Kirkland, James) (Entered: 12/07/2005)
109 Motion to allow James G. Felakos to appear pro hac vice (Pro Hac fee $50 receipt number 237947) filed byDavid E. Hale on behalf of Steven M. Prye (Bax, Laura) (Entered: 12/15/2005)
ORDER granting 109 motion to appear pro hac vice approved by Clerk of Court. Attorney James G. Felakos for plaintiffs allowed to appear pro hac vice.

This is a text only entry and will serve as authorization for the pro hac participation by the attorney. No document is attached.

12/16/2005 12/22/2005 12/28/2005 12/29/2005 01/04/2006 01/11/2006 01/17/2006 01/17/2006

(Bax, Laura) (Entered: 12/15/2005)
110 NOTICE to take deposition of Board of Election Commissioners for the City of St. Louis filed by James G. Felakos on behalf of Plaintiffs Missouri Protection and Advocacy Services, Patrick W. Sharp, Bob Scaletty, Steven M. Prye.(Felakos, James) (Entered: 12/16/2005)
111 CERTIFICATE OF SERVICE by Matt Blunt, Jeremiah Nixon of Mailing Defendants' Responses to Plaintiffs' Second Request for Production of Documents filed by Michael Pritchett on behalf of Defendants Matt Blunt, Jeremiah Nixon.(Pritchett, Michael) (Entered: 12/22/2005)
112 MOTION for extension of time filed byJames Michael Kirkland on behalf of all plaintiffs Suggestions in opposition/response due by 1/12/2006 unless otherwise directed by the court (Kirkland, James) (Entered: 12/28/2005)
113 ORDER granting 112 motion for extension of time. Discovery completed on or before 01/18/2006. Dispositive motions shall be filed on or before 02/21/2006. Signed by Judge Ortrie D. Smith on 12/29/2005. (Will−Fees, Eva) (Entered: 12/29/2005)
114 CERTIFICATE OF SERVICE by all plaintiffs of Second Supplemental Disclosures filed by James Michael Kirkland on behalf of Plaintiffs Missouri Protection and Advocacy Services, Patrick W. Sharp, Bob Scaletty, Steven M. Prye.(Kirkland, James) (Entered: 01/04/2006)
115 NOTICE to take deposition of Dr. Bruce Harry filed by James Michael Kirkland on behalf of Plaintiffs Missouri Protection and Advocacy Services, Patrick W. Sharp, Bob Scaletty, Steven M. Prye.(Kirkland, James) (Entered: 01/11/2006)
116 Joint MOTION for extension of time for discovery and dispositive motions filed byJames Michael Kirkland on behalf of all plaintiffs Suggestions in opposition/response due by 2/1/2006 unless otherwise directed by the court (Kirkland, James) (Entered: 01/17/2006)
117 NOTICE (SEALED) by Matt Blunt, Jeremiah Nixon "Defendants' Daubert Objections to Plaintiff's Designated Expert" (Attachments: # 1 Exhibit A# 2 Exhibit B)(Pritchett, Michael) (Entered: 01/17/2006)

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01/17/2006 118 ORDER granting 116 motion for extension of time. Discovery extended on or before 02/08/2006 and dispositive mitions filed on or before 02/28/2006. Signed by Judge Ortrie D. Smith on 01/17/2006. (Will−Fees, Eva) (Entered: 01/17/2006)

01/17/2006 119 NOTICE of change of address by Anthony E. Rothert (Rothert, Anthony) (Entered: 01/17/2006)

01/30/2006

120 NOTICE of filing by Steven M. Prye re 117 Notice(SEALED) Plaintiffs' Suggestions in Opposition Defendants' Objections to Plaintiffs' Expert, (This document does not need to be sealed) (Attachments: # 1 Exhibit Ex. 1, Appelbaum CV# 2 Exhibit Ex. 2, Appelbaum Cites)(Felakos, James) (Entered: 01/30/2006)

02/14/2006 121 NOTICE of filing by Matt Blunt, Jeremiah Nixon Defendants' Reply to Plaintiffs' Suggestions in Opposition to Defendants' Daubert Objections to Plaintiff's Designated Expert (Pritchett, Michael) (Entered: 02/14/2006)

02/15/2006 122 CERTIFICATE OF TRANSMISSION OF DEPOSITION of Bruce Harry, MD (Bax, Laura) (Entered: 02/15/2006)

02/27/2006 123 CERTIFICATE OF TRANSMISSION OF DEPOSITION of Elaine Gilley (Bax, Laura) (Entered: 02/27/2006)

02/27/2006 124 MOTION for leave to file filed byJames Michael Kirkland on behalf of all plaintiffs Suggestions in opposition/response due by 3/14/2006 unless otherwise directed by the court (Kirkland, James) (Entered: 02/27/2006)

02/27/2006

125 MOTION for leave to file Surreply in Opposition to Defendants Daubert Objections filed byJames G. Felakos on behalf of all plaintiffs Suggestions in opposition/response due by 3/14/2006 unless otherwise directed by the court (Attachments: # 1 Exhibit Plaintiffs? Surreply in Opposition# 2 Exhibit Ex. A, Dr. Harry Dep Excerpts)(Felakos, James) (Entered: 02/27/2006)

02/28/2006 126 ORDER granting 125 motion for leave to file Signed by Judge Ortrie D. Smith on 02/28/2006. (Will−Fees, Eva) (Entered: 02/28/2006)

02/28/2006 127 ORDER granting 124 motion for leave to file. Signed by Judge Ortrie D. Smith on 02/28/2006. (Will−Fees, Eva) (Entered: 02/28/2006)

02/28/2006

128 NOTICE of filing by Bob Scaletty re 117 Notice(SEALED) Plaintiffs Surreply in Opposition to Defendants Daubert Objections to Plaintiffs? Designated Expert [THIS DOCUMENT NEED NOT BE SEALED] (Attachments: # 1 Exhibit (A) Dr. Harry Dep Excerpts)(Felakos, James) (Entered: 02/28/2006)

02/28/2006

129 MOTION for extension of time in which to File Defendants Blunt and Nixon's Motion for Summary Judgment filed byMichael Pritchett on behalf of Matt Blunt, Jeremiah Nixon Suggestions in opposition/response due by 3/15/2006 unless otherwise directed by the court (Pritchett, Michael) (Entered: 02/28/2006)

02/28/2006

130 SUGGESTIONS in opposition re 129 MOTION for extension of time in which to File Defendants Blunt and Nixon's Motion for Summary Judgment filed by James Michael Kirkland on behalf of Plaintiffs Missouri Protection and Advocacy Services, Patrick W. Sharp, Bob Scaletty, Steven M. Prye. Reply suggestions due by 3/15/2006 unless otherwise directed by the court (Related document(s) 129 ) (Kirkland, James) (Entered: 02/28/2006)

03/01/2006

131 ORDER granting 129 motion for extension of time. Dispositive motions filed on or before 03/15/2006. PTC at 10:00 a.m. on 08/04/2006 and trial at 8:00 a.m. on 09/22/2006. Signed by Judge Ortrie D. Smith on 03/01/2006. (Will−Fees, Eva) (Entered: 03/01/2006)

03/15/2006 132 MOTION for summary judgment filed byJames Michael Kirkland on behalf of all plaintiffs Suggestions in opposition/response due by 4/17/2006 unless otherwise directed by the court (Kirkland, James) (Entered: 03/15/2006)

03/15/2006

133 SUGGESTIONS in support (SEALED) re 132 MOTION for summary judgment filed by James Michael Kirkland on behalf of Plaintiffs Missouri Protection and Advocacy Services, Patrick W. Sharp, Bob Scaletty, Steven M. Prye. (Attachments: # 1 Exhibit # 2 # 3 # 4 # 5 # 6 # 7 # 8 # 9 # 10 # 11 # 12 # 13 # 14 # 15 # 16 # 17 # 18 # 19 # 20 # 21 # 22)(Related document(s) 132 ) (Kirkland, James) (Entered: 03/15/2006)

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03/15/2006
03/20/2006 03/20/2006
03/30/2006 04/14/2006 04/14/2006
04/24/2006
04/25/2006 04/25/2006
04/27/2006 05/01/2006 05/09/2006
05/12/2006 06/15/2006

134 MOTION for leave to file Defendants' Motion for Summary Judgment filed byMichael Pritchett on behalf of Matt Blunt, Jeremiah Nixon Suggestions in opposition/response due by 3/30/2006 unless otherwise directed by the court (Attachments: # 1 Motion for Summary Judgment# 2 Exhibit # 3 Exhibit # 4 # 5 Exhibit # 6 Exhibit # 7 Exhibit # 8 Exhibit # 9 Exhibit # 10 Exhibit # 11 Exhibit # 12 Exhibit)(Pritchett, Michael) (Entered: 03/15/2006)
135 ORDER granting 134 motion for leave to file Signed by Judge Ortrie D. Smith on March 20, 2006. (Loomer, Betsy) (Entered: 03/20/2006)
136 MOTION for summary judgment filed byMichael Pritchett on behalf of Matt Blunt, Jeremiah Nixon Suggestions in opposition/response due by 4/24/2006 unless otherwise directed by the court (Attachments: # 1 Exhibit # 2 # 3 Exhibit # 4 Exhibit # 5 Exhibit # 6 Exhibit # 7 Exhibit # 8 Exhibit # 9 Exhibit # 10 Exhibit # 11 Exhibit)(Pritchett, Michael) (Entered: 03/20/2006)
137 ORDER. Signed by Judge Ortrie D. Smith on 03/30/2006. (Will−Fees, Eva) Modified on 3/31/2006 Copies mailed as directed(James, Carrie). (Entered: 03/30/2006)
138 ORDER. Signed by Judge Ortrie D. Smith on 04/14/2006. (Will−Fees, Eva) (Entered: 04/14/2006)
139 SUGGESTIONS in opposition to motion for summary judgment (SEALED) re 132 MOTION for summary judgment filed by Michael Pritchett on behalf of Defendants Matt Blunt, Jeremiah Nixon. Reply suggestions due by 5/1/2006 unless otherwise directed by the court (Attachments: # 1 Exhibit G−1# 2 Exhibit G−2# 3 Exhibit H)(Related document(s) 132 ) (Pritchett, Michael) (Entered: 04/14/2006)
140 MOTION for leave to file Suggestions in Opposition to Defendant's Motion for Summary Judgment in Excess of Fifteen Pages filed by James Michael Kirkland on behalf of all plaintiffs Suggestions in opposition/response due by 5/9/2006 unless otherwise directed by the court (Attachments: # 1 Exhibit A# 2 Exhibit 1# 3 Exhibit a to 1)(Kirkland, James) (Entered: 04/24/2006)
141 ORDER granting 140 motion for leave to file. Signed by Judge Ortrie D. Smith on 04/25/2006. (Will−Fees, Eva) (Entered: 04/25/2006)
142 SUGGESTIONS in opposition to motion for summary judgment re 136 MOTION for summary judgment filed by James Michael Kirkland on behalf of Plaintiffs Missouri Protection and Advocacy Services, Patrick W. Sharp, Bob Scaletty, Steven M. Prye. Reply suggestions due by 5/10/2006 unless otherwise directed by the court (Attachments: # 1 Exhibit 1# 2 Exhibit A to 1)(Related document(s) 136 ) (Kirkland, James) (Entered: 04/25/2006)
143 MOTION to intervene pursuant to 28 U.S.C. 2403(a) filed by Sarah E. Harrington on behalf of United States of America Suggestions in opposition/response due by 5/12/2006 unless otherwise directed by the court (Harrington, Sarah) (Entered: 04/27/2006)
144 REPLY SUGGESTIONS to motion re 132 MOTION for summary judgment filed by James Michael Kirkland on behalf of Plaintiffs Missouri Protection and Advocacy Services, Patrick W. Sharp, Bob Scaletty, Steven M. Prye. (Related document(s) 132 ) (Kirkland, James) (Entered: 05/01/2006)
145 SUGGESTIONS in opposition re 140 MOTION for leave to file Suggestions in Opposition to Defendant's Motion for Summary Judgment in Excess of Fifteen Pages "DEFENDANTS' REPLY TO PLAINTIFFS' SUGGESTIONS IN OPPOSITION TO DEFENDANTS' MOTION FOR SUMMARY JUDGMENT" filed by Michael Pritchett on behalf of Defendants Matt Blunt, Jeremiah Nixon. Reply suggestions due by 5/24/2006 unless otherwise directed by the court (Related document(s) 140 ) (Pritchett, Michael) (Entered: 05/09/2006)
146 LETTER from Government of the District of Columbia Office of General Counsel regarding receipt of order of 3/30/06 (Russel, Jeri) (Entered: 05/12/2006)
147 MOTION for leave to file to file overlength brief filed by Sarah E. Harrington on behalf of United States of America Suggestions in opposition/response due by 6/30/2006 unless otherwise directed by the court (Harrington, Sarah) (Entered:

Case: 2:04-cv-4248 As of: 07/30/2017 02:47 PM CDT 16 of 17

06/15/2006
06/21/2006 07/03/2006 07/07/2006 07/07/2006 08/03/2006
08/03/2006 08/03/2006 08/11/2006 08/23/2007
08/27/2007
10/18/2007 10/26/2007

06/15/2006)
148 SUGGESTIONS in opposition to motion for summary judgment re 136 MOTION for summary judgment Brief in Defense of Constitutionality of Title II of ADA filed by Sarah E. Harrington on behalf of Intervenor United States of America. Reply suggestions due by 6/30/2006 unless otherwise directed by the court (Related document(s) 136 ) (Harrington, Sarah) (Entered: 06/15/2006)
149 ORDER granting 147 motion for leave to file. Signed by Judge Ortrie D. Smith on 06/20/2006. (Will−Fees, Eva) (Entered: 06/21/2006)
150 REPLY SUGGESTIONS to motion re 136 MOTION for summary judgment filed by Michael Pritchett on behalf of Defendants Matt Blunt, Jeremiah Nixon. (Related document(s) 136 ) (Pritchett, Michael) (Entered: 07/03/2006)
151 ORDER denying 132 Plalintiffs' motion for summary judgment, granting Defendants' 136 motion for summary judgment. Signed by Judge Ortrie D. Smith on 07/07/2006. (Will−Fees, Eva) (Entered: 07/07/2006)
152 CLERK'S JUDGMENT (Will−Fees, Eva) (Entered: 07/07/2006)
153 NOTICE OF APPEAL as to 151 Order on Motion for Summary Judgment, by Missouri Protection and Advocacy Services, Patrick W. Sharp, Bob Scaletty, Steven M. Prye. Filing fee $ 455, receipt number 1318269. (Attachments: # 1 Form A# 2 Additional Counsel)(Finkelstein, Michael) (Entered: 08/03/2006)
154 TRANSMISSION of Notice of Appeal and docket sheet to US Court of Appeals re 153 Notice of Appeal (Bax, Laura) (Entered: 08/03/2006)
***Appeal Receipt of Notice of Appeal and supporting documents received by USCA on: Thu Aug 3 15:49:01 CDT 2006 (Bax, Laura) (Entered: 08/03/2006)
USCA Case Number from 8th Circuit is 06−3014 for 153 Notice of Appeal THIS IS A TEXT ENTRY ONLY − NO DOCUMENT IS ATTACHED. (Bax, Laura) (Entered: 08/11/2006)
155 USCA Opinion as to 153 Notice of Appeal, filed by Patrick W. Sharp, Steven M. Prye, Bob Scaletty, Missouri Protection and Advocacy Services This is a preliminary opinion of U.S. Court of Appeals; jurisdiction is not recovered until the Mandate is issued by the U.S Court of Appeals. (Attachments: # 1 Opinion)(Bax, Laura) (Entered: 08/23/2007)
156 USCA Judgment as to 153 Notice of Appeal, filed by Patrick W. Sharp, Steven M. Prye, Bob Scaletty, Missouri Protection and Advocacy Services This is a preliminary judgment and/or opinion of U.S. Court of Appeals; jurisdiction is not recovered until the Mandate is issued by the U.S Court of Appeals. (James, Carrie) (Entered: 08/27/2007)
157 ORDER of US COURT OF APPEALS denying petition for rehearing en banc; petition for rehearing by panel is also denied. (Russel, Jeri) (Entered: 10/18/2007)
158 MANDATE of US COURT OF APPEALS as to 153 Notice of Appeal, filed by Patrick W. Sharp, Steven M. Prye, Bob Scaletty, Missouri Protection and Advocacy Services with mandate issued on 10/26/07. (James, Carrie) (Entered: 10/26/2007)

Case: 2:04-cv-4248 As of: 07/30/2017 02:47 PM CDT 17 of 17

 
 IN THE UNITED STATES DISTRICT COURT FOR THE WESTERN DISTRICT OF MISSOURI
CENTRAL DIVISION

STEVEN M. PRYE, by his next friend, OFFICE OF

)

STATE GUARDIAN; BOB SCALETTY, by his )

next friend REBBECCA LAKE WOOD; PATRICK)

W. SHARP, by his next friend REBBECCA LAKE )

WOOD; individually; and MISSOURI

)

PROTECTION AND ADVOCACY SERVICES, )

INCORPORATED, a Missouri not-for-profit

)

organization;

)

Plaintiffs,

)

)

v.

)

)

MATT BLUNT, in his official capacity as Secretary of )

State of the State of Missouri; JEREMIAH W. )

(JAY) NIXON, in his official capacity as Attorney )

General of the State of Missouri; LEO G. (GARY) )

STOFF, JR. and JAMES P. O’TOOLE, in their )

official capacities as directors of the Board of

)

Election Commissioners for the City of St. Louis; )

MICHAEL A. LUEKEN, in his capacity as

)

secretary and member of the Board of Election )

Commissioners for the City of St. Louis; DERIO L. )

GAMBARO, in his capacity as chairperson of )

the Board of Election Commissioners for the City )

of St. Louis; ANGELA DA SILVA and YVONNE )

B. HUNTER, in their capacities as members of the )

Board of Election Commissioners for the City )

of St. Louis; BOARD OF ELECTION

)

COMMISSIONERS FOR THE CITY

)

OF ST. LOUIS; SHARON TURNER BLUE and )

RAY S. JAMES, in their official capacities as

)

directors of the of the Board of Elections for Kansas)

City; CHERYL LYNN BISBEE, in her capacity as )

secretary and member of the Board of Elections for )

Kansas City; LINDA S. TARPLEY, in her capacity )

as chairperson of Board of Elections for Kansas )

City; ROSA JAMES and BRUCE B. WAUGH, )

in their capacities as members of the Board of

)

Elections for Kansas City; and BOARD OF

)

ELECTION COMMISSIONERS FOR

)

KANSAS CITY;

)

Defendants.

)

No. 2:04-cv-04248-ODS
First Amended Complaint for Declarative and Injunctive Relief

INTRODUCTION 1. The Missouri Constitution prohibits from voting any individual who has “a
guardian of his or her estate or person by reason of mental incapacity[] appointed by a court of competent jurisdiction.” Mo. Const. Art. 8, § 2. By statute, Missouri restricts any person who has been “adjudged incapacitated” from registering to vote and from voting. V.A.M.S. 115.133. 2. Plaintiff Missouri Protection and Advocacy Service, Incorporated (MOPAS), protects and advocates for Missouri residents with disabilities and brings these claims on behalf of individuals who are competent to vote and would be eligible to vote in Missouri but for the fact that they have been adjudged incapacitated. 3. Plaintiffs Steven M. Prye (Prye), Bob Scaletty (Scaletty), and Patrick W. Sharp (Sharp) have been adjudged incapacitated and appointed a guardian; as a result they are prohibited from voting in Missouri. They would like to vote in future elections. 4. Plaintiffs seek a judgment declaring that the prohibition on registering to vote and voting violates the Due Process Clause of the Fourteenth Amendment to the Constitution of the United States, the Equal Protection Clause of the Fourteenth Amendment to the Constitution of the United States, the Americans with Disabilities Act, and section 504 of the Rehabilitation Act of 1973. In addition, Prye further seeks judgment declaring that the prohibition on registering to vote or voting as applied to him violates the Full Faith and Credit Clause of the Constitution of the United States.
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5. Plaintiffs seek a preliminary and permanent injunction enjoining Defendants from disenfranchising individuals who are competent to vote on the grounds that they have been appointed a guardian. JURISDICTION AND VENUE
6. This Court has subject matter jurisdiction over this action pursuant to 28 U.S.C. §§1331, 1343(a)(4).
7. Venue is proper in this Court under 28 U.S.C. §1391(b) and Local Rule 3.2(a)(2). The primary offices of Defendants Blunt and Nixon, from which they implement the challenged provisions of Missouri law, are located in Cole County. PARTIES
8. Prye brings this action individually and by his next friend, Office of State Guardian, pursuant to Federal Rule of Civil Procedure 17(c). Prye has been diagnosed with a mental illness, adjudged incapacitated, and appointed a guardian. Prye is substantially limited in the major life activities of self-care, taking care of his personal needs (e.g., eating, dressing, bathing, hygiene, household chores, managing money), and interactions with others. The record of Prye’s substantial limitation in major life activities extends back at least three years.
9. Scaletty brings this action individually and by his next friend, Rebbecca Lake Wood, pursuant to Federal Rule of Civil Procedure 17(c). Scaletty has been diagnosed with a mental illness, adjudged incapacitated, and appointed a guardian. Scaletty is substantially limited in major life activity of self care. He also has record of substantial limitation in self care.
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10. Sharp brings this action individually and by his next friend, Rebbecca Lake Wood, pursuant to Federal Rule of Civil Procedure 17(c). He has been diagnosed with a mental illness, adjudged incapacitated, and appointed a guardian. Sharp is substantially limited in major life activity of self care. He also has record of substantial limitation in self care.
11. MOPAS has its main office at 925 South Country Club Drive, Jefferson City, Missouri. MOPAS is a not-for-profit corporation duly organized under the laws of the State of Missouri and has been designated by the governor of the State of Missouri as the statewide protection and advocacy agency to protect and advocate for the legal and civil rights of those Missouri citizens who have mental disabilities pursuant to the Protection and Advocacy for Mentally Ill Individuals (PAIMI) Act, 42 U.S.C. § 10801, et seq., and the Developmental Disabilities Assistance and Bill of Rights Act (DD Act), 42 U.S.C. § 15001, et seq.; id. § 15041, et seq.
12. Pursuant to the PAIMI and DD Acts, as the designated statewide protection and advocacy agency for individuals with mental disabilities in the State of Missouri, MOPAS has the authority and the responsibility to pursue legal remedies or relief as might be necessary to protect and advocate for the rights of individuals with mental disabilities. 42 U.S.C. § 10801, et seq.
13. MOPAS brings this action to protect and advocate for the rights and interests of Missouri citizens who have been adjudged incapacitated and who are individuals with “mental illness” or “developmental disabilities” as those terms are defined at 42 U.S.C. §§ 10802 and 15002. These individuals are MOPAS’ constituents.
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14. The MOPAS constituents on whose behalf this action brought have significant disabilities that substantially limit one or more major life activities. These constituents are, therefore, individuals with disabilities for the purposes of the Americans with Disabilities Act and the Rehabilitation Act.
15. The MOPAS constituents on whose behalf this action is brought have each suffered, or will suffer, such injuries that would allow them to individually bring suit against defendants.
16. Defendant Matt Blunt is the Secretary of State of the State of Missouri. As Secretary of State, Defendant Blunt is responsible for such duties in relation to elections as the law provides. Mo. Const. Art. 4, § 14. He is the state’s chief election official. See V.A.M.S. 28.035; V.A.M.S. 115.136. Defendant Blunt is also required to notify local election authorities of persons within their respective jurisdictions who have been adjudged incapacitated. V.A.M.S. 115.195(3). Defendant Blunt has the responsibility to oversee the administration of elections in Missouri. Defendant Blunt’s primary office is located in Jefferson, Missouri.
17. Defendant Jeremiah W. (Jay) Nixon is the Attorney General of the State of Missouri. Defendant Nixon is charged with instituting proceedings to enforce Art. 8, § 2 of the Missouri Constitution and statutes that disenfranchise persons who have been adjudged incapacitated and appointed a guardian. See V.A.M.S. 27.060. Defendant Nixon’s primary office is located in Jefferson City, Missouri.
18. Defendants Leo G. (Gary) Stoff, Jr., and James P. O’Toole are directors of the Defendant Board of Election Commissioners for the City of St. Louis. Defendant Michael A. Lueken is secretary and a member of Defendant Board of Election
5

Commissioners for the City of St. Louis. Defendant Derio L. Gambaro is chairperson of Defendant Board of Election Commissioners for the City of St. Louis. Defendants Angela da Silva and Yvonne B. Hunter are members of Defendant Board of Election Commissioners for the City of St. Louis. Defendant Board of Election Commissioners for the City of St. Louis is the election authority for St. Louis City. V.A.M.S. 115.015. 19. Defendants Sharon Turner Blue and Ray S. James are directors of the Defendant Board of Election Commissioners for Kansas City. Defendant Cheryl Lynn Bisbee is secretary and a member of the Defendant Board of Election Commissioners for Kansas City. Defendant Linda S. Tarpley is chairperson of the Defendant Board of Election Commissioners for Kansas City. Defendants Rosa James and Bruce B. Waugh are members of the Defendant Board of Election Commissioners for Kansas City. Defendant Board of Election Commissioner for Kansas City is the election authority for Kansas City. 20. By statute, the election authority is required to supervise the registration of voters within its jurisdiction and insure persons are qualified to register. V.A.M.S. 115.141.
MISSOURI CONSTITUTION AND STATUTES 21. The Missouri Constitution states, inter alia., “[N]o person who has a guardian of
his or her estate or person by reason of mental incapacity[] appointed by a court of competent jurisdiction … shall be entitled to vote.” Mo. Const. Art. 8, § 2. 22. By statute, the State of Missouri prohibits any persons who have been adjudged incapacitated by a court from registering to vote or voting. V.A.M.S. 115.133.
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23. Persons under guardianship, and persons who assist them, may be subject to criminal charges for casting or encouraging an illegal vote. V.A.M.S. 115.175; V.A.M.S. 115.631. A class one election offense is a felony punishable “by imprisonment of not more than five years or by fine of not less than two thousand five hundred dollars but not more than ten thousand dollars or by both such imprisonment and fine[.]” V.A.M.S. 115.631. What is more, the State of Missouri permanently declares persons convicted of a misdemeanor or felony related to the right of suffrage ineligible to register to vote or vote. V.A.M.S. 115.133(3). FACTS
24. Prye was born on November 13, 1952, in Memphis, Tennessee. He was one of the first black students to attend Central High School, the city’s best high school, during desegregation. He was at school on April 4, 1968 when—about a mile away-- Martin Luther King, Jr., was killed at the Lorraine Motel. Other students and some teachers celebrated. This event, amongst others, convinced Prye that he would do whatever it took to overcome disadvantage and discrimination. Upon graduating from high school, Prye received a scholarship from Yale University and completed his undergraduate studies in New Haven. After college Prye attended law school at Harvard, where he was on the staff of the Public Law Review. Prye began his legal career by working for two firms in New York City. He sometimes taught legal writing courses at New York University, and he was awarded an L.L.M. in taxation by N.Y.U. Prye left New York City because he wanted to teach fulltime. He taught several years at the Vermont Law School,
7

then at the University of Illinois School of Law. During several of these years, Prye wrote a regular column in the Memphis newspaper on estate planning and related issues, including guardianship. It was at the University of Illinois and around age 49 that Prye’s condition deteriorated. He is now diagnosed with schizoaffective disorder. On December 12, 2003, Office of State Guardian was appointed as guardian of Prye’s person by the Circuit Court of Sangamon County, Illinois. The same Court appointed Office of State Guardian as guardian of Prye’s estate on March 11, 2004. Since April 2004, Prye has resided in St. Louis, Missouri. There is currently pending a petition for appointment of a guardian in the Missouri Circuit Court, Twenty-second Judicial Circuit, Probate Division, in St. Louis. 25. The Circuit Court of Sangamon County, Illinois, appointed a guardian without limitation and did not consider Prye’s competence to vote. Illinois law does not disenfranchise Illinois residents simply because they have been appointed a guardian. 10 ILCS 5/3-1 (qualifications to vote in Illinois); see Miller v. State Board of Elections, 1989 WL 36212 (N.D.Ill. 1989) (discussion of fact that mental incapacity is not a disqualification for voting under Illinois law). On October 28, 2004, the Court found that it did not have jurisdiction to limit Prye’s guardianship so as to reserve to Prye the right to vote since its appointment of a guardian had not stripped him of the right in the first instance. 26. The Circuit Court in St. Louis, in considering the case pending before it, is not authorized by Missouri law to consider Prye’s capacity to vote or to reserve to him the right to vote in the event a guardian is appointed. It is likely the Court
8

will adjudge Prye incapacitated and appoint a guardian if it finds Prye is a person who is unable by reason of any physical or mental condition to receive and evaluate information or to communicate decisions to such an extent that he lacks capacity to meet essential requirements for food, clothing, shelter, safety, or other care such that serious physical injury, illness, or disease is likely to occur. See V.A.M.S. 475.010, et seq. The determinations the Court is required to make have no bearing on or relation to the capacity to vote. Indeed, the Court ruled evidence of Prye’s capacity for voting was irrelevant when it was offered at his guardianship hearing. 27. Prye is interested in politics. He has regularly voted in the past. He understands the nature of the political process and is competent to vote. He only learned that he was ineligible to vote in Missouri when he recently sought to register to vote. 28. On September 24, 2004, Prye attempted to register to vote in the State of Missouri by completing a Missouri Voter Registration Application. In order to make his application truthful, Prye struck the assertion contained on the form application that he had not been adjudged incapacitated. Defendant Stoff, on behalf of Defendant St. Louis Board of Election Commissioners, denied Prye’s application on the sole basis that Prye had been adjudged mentally incapacitated. 29. Scaletty is 54 years old and is under guardianship. He is diagnosed with paranoid schizophrenia. He voted consistently until the November 2, 2004 election. He did not vote in the 2004 general election because on or about September 7, 2004, he received a letter from the Defendant Board of Election Commissions for Kansas City telling him that he was ineligible to vote based on his guardianship
9

status. For about 20 years, Scaletty worked as a construction electrician. He used to fly airplanes as a hobby. 30. Scaletty believes voting is important because it is the height of democracy and provides him a chance to voice his opinions. He understands the nature and purpose of elections. 31. Sharp is 41 years old. He has been diagnosed with schizophrenia and is under guardianship. He has lived in Kansas City since 1989. Sharp voted in the 2000 presidential election and regularly in prior elections. He did not vote in the November 2, 2004, general election because he had heard from other residents at the assisted-living facility where he resides that persons under guardianship could not vote and that it would be a crime to try to vote. 32. Sharp wants to vote so that he can voice his choices on key issues. He likes to hear what the candidates have to say and look at all sides of issues. He understands the nature and purpose of elections. 33. Plaintiffs meet all of the qualifications to vote in the State of Missouri except that they have been adjudged incapacitated and appointed guardians. Mo. Const. Art. 8, § 2; V.A.M.S. 115.133. The sole reason they are ineligible to register to vote and vote in Missouri is that they is under guardianship. 34. Plaintiffs were denied the right to vote in the November 2, 2004, general election. 35. As Missouri’s designated protection and advocacy system for individuals with mental disabilities, MOPAS represents individuals who, like the individual plaintiffs, have guardians appointed for them because of their mental disabilities.
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36. MOPAS expends time, money, and other resources on behalf of individuals with mental disabilities to address their disenfranchisement and to protect their rights.
37. Many MOPAS constituents who are under guardianship are competent to vote but are prohibited from voting based on the challenged statutory and constitutional provisions. COUNT I Violation of Due Process Clause
38. Plaintiffs repeat and re-allege each and every allegation in paragraphs 1 through 37 as if fully incorporated herein.
39. The Missouri Constitution and statutes deny Plaintiffs due process in violation of the Fourteenth Amendment to the Constitution of the United States by disenfranchising them without a process that requires proof that they lack the capacity to vote.
40. Missouri’s guardianship statutes do not provide due process because they provide neither notice nor the opportunity to be heard on the issue of voting. Any notice or opportunity to be heard that might be provided to some persons is without uniform standards, is arbitrary, and varies widely throughout the state. Further, Missouri deprives its residents of the right to vote based on guardianship proceedings of other states without regard for whether those states’ guardianship proceedings consider the individual’s capacity to vote.
41. Because the right to vote is a fundamental right and, thus, a fundamental liberty interest, the burden of proving that it should be taken away must rest with the state. Even if an individual could return to probate court to seek to have the right
11

to vote restored, the burden of proof would be inappropriately placed on the individual. 42. Because the fundamental right to vote is implicated, the Missouri Constitution and statutes that disenfranchise individuals who have been appointed a guardian should be reviewed under the strict scrutiny standard. 43. Plaintiffs are entitled to injunctive and declaratory relief because they are injured by Defendants’ acts and omissions that deprive them of the right to vote in violation of the Due Process Clause of the Fourteenth Amendment. Their claim is brought pursuant to 42 U.S.C. § 1983.
COUNT II Violation of Equal Protection Clause 45. Plaintiffs repeat and re-allege each and every allegation in paragraphs 1 through 37 as if fully incorporated herein. 46. The Equal Protection Clause of the Fourteenth Amendment provides, “[N]o state shall deny to any person within its jurisdiction the equal protection of the laws.” U.S. Const., amend. XIV. 47. Plaintiffs are similarly situated to individuals who have the capacity to vote but who have not been appointed a guardian. Because they have not been appointed a guardian, the individuals in the latter class retain the fundamental right to vote. 48. Defendants, by their acts and omissions under color of state law, are depriving Plaintiffs of rights secured by the Equal Protection Clause of the Fourteenth Amendment to the Constitution of the United States by disenfranchising them on the ground that they are under guardianship.
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49. Voting is a fundamental right, yet Mo. Const. Art. 8, § 2 and the Missouri statues that disenfranchise Plaintiffs are not narrowly tailored to achieve a compelling state interest.
50. Plaintiffs are entitled to injunctive and declaratory relief because being denied the right to vote in violation of the Equal Protection Clause of the Fourteenth Amendment injures them. Their claim is brought pursuant to 42 U.S.C. § 1983. COUNT III Violation of Full Faith and Credit Clause
51. Plaintiffs repeat and re-allege each and every allegation in paragraphs 1 through 8, 16-18, 20-28, and 33-34 as if fully incorporated herein.
52. The Full Faith and Credit Clause of the Constitution provides, Full Faith and Credit shall be given in each State to the public Acts, Records, and judicial Proceedings of every other State. And the Congress may be general Laws prescribe the Manner in which such Acts, Records and Proceedings shall be proved, and the Effect thereof. U.S. Const., Art. IV, § 1.
53. The judgments of the Illinois state court finding Prye to be in need of a guardian and appointing a guardian qualify for recognition in the State of Missouri.
54. By applying Missouri Const., Art. 8, § 2, and V.A.M.S. 115.113 to Prye on the sole basis of the judgment of the Illinois Court that did not restrict his right to vote, Defendants disenfranchised him in a manner that violates the Full Faith and Credit Clause of the Constitution of the United States.
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55. Prye is entitled to declaratory and injunctive relief because being denied the right to register to vote and to vote in a manner that violates the Full Faith and Credit Clause injured him. His claim is brought pursuant to 28 U.S.C. § 1738. COUNT IV Violation of Americans with Disabilities Act
56. Plaintiffs repeat and re-allege each and every allegation in paragraphs 1 through 37 as if fully incorporated herein.
57. Subtitle A of Title II of the Americans with Disabilities Act (ADA) prohibits public entities from discriminating against persons with disabilities in their programs, services, and activities. 42 U.S.C. §§ 12131-12134. Regulations implementing subtitle A are codified at 28 C.F.R. part 35.
58. Title II’s definition of “public entity” includes any state or local government or “any department, agency … or other instrumentality” of a state or local government. 42 U.S.C. § 12131(1)(A), (B).
59. Defendants are responsible for the operation of public entities for the purposes of Title II.
60. Plaintiffs have a disability within the meaning of 42 U.S.C. § 12102(2) and 28 C.F.R. § 35.104.
61. Plaintiffs are “qualified individual[s] with a disability” within the meaning of 42 U.S.C. § 12131(2) and 28 C.F.R. § 35.104 because they meet all voting eligibility requirements other than the requirement that they not be under guardianship.
62. The State of Missouri is a “public entity” within the meaning of 42 U.S.C. § 12131(1)(A) and 28 C.F.R. § 35.104.
63. Defendants subject Plaintiffs to discrimination by excluding them from voting in
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federal, state, and local elections. The exclusion and discrimination violate 42 U.S.C. § 12132, which states:
Subject to the provisions of this subchapter, no qualified individual with a disability shall, by reason of such disability, be excluded from participation in or be denied the benefits of the services, programs, or activities of a public entity, or be subjected to discrimination by any such entity. 64. Defendants are violating the regulations promulgated under the ADA in the following respects: a. Defendants, on the basis of Plaintiffs’ disabilities, exclude them from participation in federal, state, and local elections, thereby subjecting him to discrimination. See 28 C.F.R. 35.130(a) (“No qualified individual with a disability shall, on the basis of disability, be excluded from participation in or be denied the benefits of the services, programs, or activities of a public entity, or be subjected to discrimination by any public entity.”). b. Defendants, on the basis of Plaintiffs’ disabilities, deny them the opportunity to participate in or benefit from their services, programs, and activities, to wit: voter registration and voting. See 28 C.F.R. 35.130(b)(1)(i)(“A public entity, in providing any aid, benefit, or service, may not, directly or through contractual, licensing, or other arrangements, on the basis of disability[,] [d]eny a qualified individual with a disability the opportunity to participate in or benefit from the aid, benefit, or service[.]”).
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c. Defendants, on the basis of Plaintiffs’ disabilities, limit them in the enjoyment of their right to vote. See 28 C.F.R. 35.130(b)(1)(vii)(“A public entity, in providing any aid, benefit, or service, may not, directly or through contractual, licensing, or other arrangements, on the basis of disability[,] [o]therwise limit a qualified individual with a disability in the enjoyment of any right, privilege, advantage, or opportunity enjoyed by others receiving the aid, benefit, or service.”).
d. Defendants utilize criteria for eligibility to register to vote and to vote that have the effect of subjecting Plaintiffs to discrimination on the basis of disability. See 38 C.F.R. 35.130(b)(3)(i) (“A public entity may not, directly or through contractual or other arrangements, utilize criteria or methods of administration [t]hat have the effect of subjecting qualified individuals with disabilities to discrimination on the basis of disability[.]”).
e. Defendants impose eligibility criteria for voting that screen out or tend to screen out individuals with disabilities, including Prye, Scaletty, and Sharp, from fully and equally enjoying voting and elections even though the criteria are not necessary for voting and elections in Missouri. See 28 C.F.R. 35.130(b)(8) (“A public entity shall not impose or apply eligibility criteria that screen out or tend to screen out an individual with a disability or any class of individuals with disabilities from fully and equally enjoying any service, program, or activity, unless such criteria can be shown to be necessary for the provision of the service, program, or activity being offered.”).
65. As a result of Defendants’ violations of the ADA and its implementing
16

regulations, Defendants are liable to Plaintiffs for injunctive and declaratory relief pursuant to 42 U.S.C. § 12133.
COUNT V Violation of §504 of the Rehabilitation Act of 1973 66. Plaintiffs repeat and re-allege each and every allegation in paragraphs 1 through 37 as if fully incorporated herein. 67. Section 504 of the Rehabilitation Act of 1973, 29 U.S.C. § 794 (Section 504), provides, inter alia., No otherwise qualified individual with a disability in the United States … shall, solely by reason of her or his disability, be excluded from the participation in, be denied the benefits of, or be subjected to discrimination under any program or activity receiving Federal financial assistance or under any program or activity conducted by any Executive agency… 68. Plaintiffs are “qualified individual[s] with a disability” as defined by 29 U.S.C. §705(20). 69. Plaintiffs meet all of the qualifications to vote in the State of Missouri except for that he has been adjudged incapacitated and appointed a guardian. 70. Defendants receive federal assistance for the purposes of Section 504. 29 U.S.C. § 794(a). 71. Defendants discriminate against Plaintiffs by not allowing them to register to vote or to vote although registering to vote and voting fit within the definition of “program or activity” provided by section 504. 29 U.S.C. § 794(b)(1)(A). 72. As a result of Defendants’ violations of § 504 of the Rehabilitation Act of 1973,
17

Defendants are liable to Plaintiffs for injunctive and declaratory relief pursuant to 29 U.S.C. §794a.
RELIEF Plaintiffs request judgment in their favor and the following relief:
A. A preliminary and permanent injunction requiring Defendants to permit Prye, Scaletty, Sharp, and others similarly situated to register to vote, to allow Plaintiffs to vote in future elections, to give notice to persons under guardianship that they can register to vote, and to require notice and the opportunity to be heard before the right to vote may be lost in future guardianship proceedings;
B. A declaratory judgment holding that the Missouri Constitution and statutes that disenfranchise Plaintiffs on the ground that they are under guardianship or have been adjudged incapacitated are invalid because they violate the Due Process Clause of the Fourteenth Amendment, the Equal Protection Clause of the Fourteenth Amendment, the Full Faith and Credit Clause of the Constitution, the Americans with Disabilities Act, and Section 504 of the Rehabilitation Act of 1973;
C. Costs and reasonable attorneys fees under 42 U.S.C. §§ 1988, 12133, 12205; 29 U.S.C. § 791, et seq., and other relevant provisions of law;
D. Such other and further relief as this Court deems just and proper. Dated: December 6, 2004.
18

/s/ Anthony E. Rothert Anthony E. Rothert, #44827 Jeff M. Plesko John Wank GUARDIANSHIP AND ADVOCACY COMMISSION 4500 College Avenue, #100 Alton, IL 62002 (618) 474-5503 (618) 474-5517 (facsimile)
Ira A. Burnim Jennifer Mathis BAZELON CENTER FOR MENTAL HEALTH LAW 1101 15th Street, NW, Suite 1212 Washington, DC 20005 (202) 467-5730 (202) 223-0409 (facsimile)
Neil Bradley ACLU NATIONAL VOTING RIGHTS PROJECT 2725 Harris Tower 233 Peachtree Street NE Atlanta, GA 30303 (404) 523-2721 (404) 653-0331 (facsimile)
Denise D. Lieberman, #47013 AMERICAN CIVIL LIBERTIES UNION
OF EASTERN MISSOURI 4557 Laclede Ave. St. Louis, MO 63108 (314) 361-2111 (314) 361-3135 (facsimile)
Michael H. Finkelstein, #25468 David E. Hale, #54641 MISSOURI PROTECTION AND
ADVOCACY SERVICES 925 South Country Club Drive Jefferson City, MO 65109 (573) 893-3333 (573) 893-4231 (facsimile)
19

 
 UNITED STATES COURT OF APPEALS FOR THE EIGHTH CIRCUIT
_____________________________________________________________

MISSOURI PROTECTION AND ADVOCACY SERVICES, INC., and BOB SCALETTY,

Plaintiffs-Appellants,

No. 06-3014

v.

ROBIN CARNAHAN, in her official capacity as Secretary of State of the State of Missouri, and JEREMIAH NIXON, in his official capacity as Attorney General of the State of Missouri,

Defendants-Appellees. _____________________________________________________________

APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE WESTERN DISTRICT OF MISSOURI THE HONORABLE ORTRIE D. SMITH
_____________________________________________________________

OPENING BRIEF OF THE PLAINTIFFS-APPELLANTS _____________________________________________________________

James M. Kirkland

Samuel R. Bagenstos

Sonnenschein, Nath & Rosenthal LLP

One Brookings Dr., Box 1120

4520 Main Street, Suite 1100

St. Louis, MO 63130

Kansas City, MO 64111

Ira A. Burnim

Anthony E. Rothert

Jennifer Mathis

American Civil Liberties Union

Alison N. Barkoff

of Eastern Missouri

Judge David L. Bazelon Center

4557 Laclede Avenue St. Louis, MO 63108

for Mental Health Law 1101 15th St., NW, Suite 1212

Washington, DC 20005

(additional counsel on signature page)

ATTORNEYS FOR PLAINTIFFS-APPELLANTS

SUMMARY OF THE CASE This case involves a challenge to the Missouri constitutional and statutory provisions that disenfranchise individuals who are under full guardianship, even if they have the capacity to vote. In Missouri, individuals are placed under guardianship if they lack the capacity to care for themselves. Although the lack of self-care skills does not imply the inability to understand the nature and effect of voting, Missouri categorically prohibits all individuals under guardianship from voting, without any individualized inquiry into their competence to vote. Plaintiffs contend that Missouri’s voting ban violates the Americans with Disabilities Act (ADA), the Rehabilitation Act, and the Fourteenth Amendment. The district court granted summary judgment to the defendant state officials on the basis of a conclusion that Missouri law does not categorically disenfranchise individuals under full guardianship. That determination directly conflicts with the plain text of the state’s constitution and statutes. But even under the district court’s reading, Missouri law would still violate federal law. Because this case raises complex issues of federal and state law, and implicates rights of exceptional importance, appellants respectfully suggest that oral argument is appropriate and that at least twenty minutes should be allocated to each side.
i

CORPORATE DISCLOSURE STATEMENT Pursuant to F.R.A.P. 26.1 and Rule 26.1A of the Local Rules of the United States Court of Appeals for the Eighth Circuit, Missouri Protection and Advocacy Services discloses the following corporate interests: 1. The parent companies of the corporation: NONE 2. Subsidiaries not wholly owned by the corporation: NONE 3. Any publicly held company that owns ten percent (10%) or more of the corporation: NONE
ii

TABLE OF CONTENTS SUMMARY OF THE CASE .....................................................................................i CORPORATE DISCLOSURE STATEMENT .........................................................ii TABLE OF AUTHORITIES .....................................................................................v JURISDICTIONAL STATEMENT ..........................................................................1 STATEMENT OF ISSUES .......................................................................................1 STATEMENT OF THE CASE .................................................................................2
A. Procedural History ..........................................................................................3 B. Statement of Facts ...........................................................................................3
1. Missouri’s Voting Ban................................................................................3 2. The Disenfranchisement of Plaintiff Scaletty.............................................5 3. The Disenfranchisement of the Constituents of Plaintiff MOPAS ............9 4. Proceedings Below ...................................................................................14 STANDARD OF REVIEW .....................................................................................17 SUMMARY OF ARGUMENT...............................................................................18 ARGUMENT ........................................................................................................... 21 I. MISSOURI’S VOTING BAN VIOLATES THE ADA AND THE REHABILITATION ACT................................................................................21 A. The Voting Ban Discriminates Against Individuals with Disabilities “By Reason of” Their Disabilities.................................................................22 B. The Voting Ban Discriminates Against “Qualified” Individuals with Disabilities .....................................................................................................27
iii

1. The ADA and the Rehabilitation Act Require an Individualized Inquiry Into Competence to Vote.............................................................27
2. Missouri Law Categorically Disenfranchises Individuals Adjudicated Totally Incapacitated ...........................................................31
3. Even Under the District Court’s Erroneous Reading, Missouri Law Still Fails to Provide the Individualized Assessment of Voting Competence Federal Law Demands.........................................................40
II. MISSOURI’S VOTING BAN VIOLATES THE FOURTEENTH AMENDMENT ................................................................................................ 42
A. Missouri’s Voting Ban Imposes Severe Restrictions on the Right to Vote and Therefore Triggers Strict Scrutiny.................................................42
B. Read According to its Plain Terms, Missouri’s Voting Ban Violates the Equal Protection and Due Process Clauses .............................................44
C. Even on the District Court’s Reading, the Voting Ban Violates the Equal Protection and Due Process Clauses ...................................................49
CONCLUSION ........................................................................................................ 51 CERTIFICATE OF COMPLIANCE CERTIFICATE OF SERVICE
iv

TABLE OF AUTHORITIES

FEDERAL CASES

Acton v. City of Columbia, 436 F.3d 969 (8th Cir. 2006) .......................................17

Alexander v. Choate, 469 U.S. 287 (1985)..............................................................28

Allison v. Department of Corrections, 94 F.3d 494 (8th Cir. 1996) .......................23

Barnes v. Gorman, 536 U.S. 181 (2002) .................................................................23

Bragdon v. Abbott, 524 U.S. 624 (1998) ...........................................................23, 25

Buckhannon Board & Care Home, Inc. v. West Virginia Department of Health & Human Resources, 532 U.S. 598 (2001)........................................15

Burdick v. Takushi, 504 U.S. 428 (1992) ......................................................2, 43, 44

Bush v. Gore, 531 U.S. 98 (2000)............................................................................43

In re Derailment Cases, 416 F.3d 787 (8th Cir. 2005)............................................18

District of Columbia Court of Appeals v. Feldman, 460 U.S. 462 (1983) .................................................................................................................. 17

Doe v. Rowe, 156 F. Supp. 2d 35 (D. Me. 2001)..............................................passim

Dudley v. Hannaford Brothers Co., 333 F.3d 299 (1st Cir. 2003)

29

Dunn v. Blumstein, 405 U.S. 330 (1972)...........................................2, 43, 44, 45, 46

Friends of the Earth, Inc. v. Laidlaw Environmental Services (TOC), Inc., 528 U.S. 167 (2000) ...................................................................................15

HSCS-Laundry v. United States, 450 U.S. 1 (1981)................................................36

Hargrave v. Vermont, 340 F.3d 27 (2d Cir. 2003) ..................................................27

Harper v. Virginia State Board of Elections, 383 U.S. 663 (1966) ........................43

v

Jessep v. Jacobson Transport Co., Inc., 350 F.3d 739 (8th Cir. 2003)...................18 Kapche v. City of San Antonio, 304 F.3d 493 (5th Cir. 2002).................................29 Layton v. Elder, 143 F.3d 469, Section 504 ............................................................23 Mathews v. Eldridge, 424 U.S. 319 (1976) .............................................................50 Mullane v. Central Hanover Bank & Trust Co., 339 U.S. 306 (1950) ...................51 Olmstead v. L.C. ex rel. Zimring, 527 U.S. 581 (1999) ......................................1, 28 PGA Tour, Inc. v. Martin, 532 U.S. 661 (2001)............................................1, 28, 29 Pottgen v. Missouri St. High Sch. Activities Association, 40 F.3d 926
(8th Cir. 1994) ....................................................................................................27 Randolph v. Rodgers, 253 F.3d 342 (8th Cir. 2001) ...............................................24 Reno v. Flores, 507 U.S. 292 (1993) .......................................................................46 Reynolds v. Sims, 377 U.S. 533 (1964)....................................................................42 Rooker v. Fidelity Trust Co., 263 U.S. 413 (1923)..................................................17 Russello v. United States, 464 U.S. 16 (1983).........................................................35 Salve Regina College v. Russell, 499 U.S. 225 (1991)............................................17 School Board v. Arline, 480 U.S. 273 (1987)................................................1, 27, 28 Servewell Plumbing, LLC. v. Federal Insurance Co., 439 F.3d 786
(8th Cir. 2006) ....................................................................................................36 Stillwell v. Kansas City Board of Police Comm'rs, 872 F. Supp. 682
(W.D. Mo. 1995) ................................................................................................29 Sutton v. United Air Lines, Inc., 527 U.S. 471 (1999)............................................29
vi

Tennessee v. Lane, 541 U.S. 509 (2004) .................................................................46 Theriault v. Flynn, 162 F.3d 46 (1st Cir. 1998).......................................................30 Thompson v. Davis, 295 F.3d 890 (9th Cir. 2002), cert. denied, 538
U.S. 921 (2003)...................................................................................................30 Timmons v. Twin Cities Area New Party, 520 U.S. 351 (1997)..............................44 Ways v. City of Lincoln, 274 F.3d 514 (8th Cir. 2001)............................................39 Ex parte Young, 209 U.S. 123 (1908)......................................................................24
STATE CASES Asbury v. Lombardi, 846 S.W.2d 196 (Mo. 1993) ..................................................34 State ex rel. Jackson County v. Public Service Commission, 532
S.W.2d 20 (Mo. 1975), cert. denied, 429 U.S. 822 (1976) ................................36
FEDERAL CONSTITUTION, STATUTES & REGULATIONS U.S. Const., Amdt. 14................................................................................................2 28 U.S.C. § 1291........................................................................................................1 28 U.S.C. §§ 1331......................................................................................................1 29 U.S.C. § 705........................................................................................................24 29 U.S.C. § 794.................................................................................................passim 42 U.S.C. § 1973gg-6(a)(3) .....................................................................................30 42 U.S.C. § 1983..................................................................................................1, 14 42 U.S.C. § 10801......................................................................................................9
vii

42 U.S.C. § 15001......................................................................................................9 42 U.S.C. § 12101....................................................................................................29 42 U.S.C. § 12102....................................................................................................24 42 U.S.C. § 12131..................................................................................14, 24, 28, 31 42 U.S.C. § 12132.............................................................................................passim 28 C.F.R. § 35.104...................................................................................................25 28 C.F.R. § 35.130(b)(8)....................................................................................28, 31
STATE STATUTES AND CONSTITUTIONS Ark. Code Ann. §28-65-302 ....................................................................................32 Cal. Prob. Code § 1910............................................................................................32 Conn. Gen. Stat. § 17a-541......................................................................................32 Del. Code Ann. Tit. 15, § 1701................................................................................32 Haw. Rev. Stat. § 11-23...........................................................................................32 Idaho Code § 66-346................................................................................................32 Mo. Const. Art. 8, § 2 .......................................................................................passim Mo. Rev. Stat. § 115.133 ..................................................................................passim Mo. Rev. Stat. § 302.010 .........................................................................................35 Mo. Rev. Stat. § 302.291 .........................................................................................35 Mo. Rev. Stat. § 451.020 .........................................................................................35
viii

Mo. Rev. Stat. § 475.010 ..................................................................................passim Mo. Rev. Stat. § 475.078 ..................................................................................passim Mo. Rev. Stat. § 475.079. ..........................................................................................4 N.D. Cent. Code § 30.1-28-04 .................................................................................32 Ohio Rev. Code Ann. § 3503.18..............................................................................32 Okla. Stat. Ann. Tit. 30 § 3-113 ..............................................................................32 Or. Const. Art. II § 3 ................................................................................................32 Wash. Rev. Code § 11.88.010 .................................................................................32
MISCELLANEOUS Note, Mental Disability and the Right to Vote, 88 Yale L.J. 1644,
1647-60 (1979) ...................................................................................................48 SAMUEL JAN BRAKEL ET AL., THE MENTALLY DISABLED AND THE LAW
446 (3d ed. 1985)................................................................................................48 BRUCE D. SALES ET AL., DISABLED PERSONS AND THE LAW: STATE
LEGISLATIVE ISSUES 111 (1982) ...............................................................7, 31, 48 Kyle Sammin & Sally Balch Hurme, Guardianship and Voting
Rights, in BIFOCAL, Vol. 26, No. 1, at 13 (Fall 2004), http://www.abanet.org/aging/261.pdf...........................................................30, 32 Kay Schriner et al., The Last Suffrage Movement: Voting Rights for Persons with Cognitive and Emotional Disabilities, 27.....................................48
ix

JURISDICTIONAL STATEMENT Plaintiffs brought this case pursuant to Title II of the Americans with Disabilities Act (ADA), 42 U.S.C. § 12131 et seq., Section 504 of the Rehabilitation Act, 29 U.S.C. § 794, and the Fourteenth Amendment of the United States Constitution, and 42 U.S.C. § 1983. R. 1.1 The district court had jurisdiction pursuant to 28 U.S.C. §§ 1331 and 1343(a)(4). The district court entered its final judgment on July 7, 2006. R. 152. Plaintiffs timely filed their notice of appeal on August 3, 2006. R. 153. This Court has jurisdiction pursuant to 28 U.S.C. § 1291.
STATEMENT OF ISSUES 1. Whether the Missouri constitutional and statutory provisions that disenfranchise persons under guardianship without an individualized determination of voting competence violate the ADA and the Rehabilitation Act. School Bd. v. Arline, 480 U.S. 273 (1987) PGA Tour, Inc. v. Martin, 532 U.S. 661 (2001) Olmstead v. L.C. ex rel. Zimring, 527 U.S. 581 (1999) Doe v. Rowe, 156 F. Supp.2d 35 (D. Me. 2001)
1 “R. __” refers to entries on the district court’s docket sheet. “Add. __” refers to pages in the addendum attached to this brief. “App. __” refers to pages in the joint appendix.
1

Mo. Const., Art. 8, § 2 Mo. Rev. Stat. § 115.133 42 U.S.C. § 12132 29 U.S.C. § 794 2. Whether the Missouri constitutional and statutory provisions that disenfranchise persons under guardianship without an individualized determination of voting competence violate the Equal Protection and Due Process Clauses of the Fourteenth Amendment. Dunn v. Blumstein, 405 U.S. 330 (1972) Burdick v. Takushi, 504 U.S. 428 (1992) Doe v. Rowe, 156 F. Supp.2d 35 (D. Me. 2001) Mo. Const., Art. 8, § 2 Mo. Rev. Stat. § 115.133 U.S. Const., Amdt. 14
STATEMENT OF THE CASE This case presents a challenge to the Missouri constitutional and statutory provisions that disenfranchise individuals under full guardianship, including those who have the capacity to vote. Individuals under full guardianship, such as plaintiff-appellant Robert Scaletty and many of the constituents of plaintiff-appellant Missouri Protection and Advocacy
2

Services (MOPAS), are precluded from voting by both the Missouri Constitution and state statutes. Plaintiffs-appellants contend that the voting ban violates Title II of the ADA, Section 504 of the Rehabilitation Act, and the Fourteenth Amendment of the United States Constitution.
A. Procedural History Plaintiffs filed their complaint in the United States District Court for the Western District of Missouri on October 8, 2004. R. 1. Defendants are Robin Carnahan, Missouri’s Secretary of State, and Jeremiah (Jay) Nixon, Missouri’s Attorney General, both of whom are sued in their official capacity for prospective relief. See Add. 5. At the same time they filed their complaint, plaintiffs sought a preliminary injunction, R. 3, but the district court denied their motion on October 26, 2004. R. 37. The parties filed cross-motions for summary judgment in March 2006. R. 132, 136. On July 7, 2006, the district court denied plaintiffs’ motion for summary judgment and granted defendants’ motion for summary judgment on all claims. Add. 1-13.
B. Statement of Facts 1. Missouri’s Voting Ban The Missouri Constitution provides that “[n]o person who has a guardian of his or her estate or person by reason of mental incapacity,
3

appointed by a court of competent jurisdiction . . . shall be entitled to vote.” Mo. Const. Art. 8, § 2. The state has implemented that constitutional prohibition by passing a statute that provides that “[n]o person who is adjudged incapacitated shall be entitled to register or vote.” Mo. Rev. Stat. § 115.133. In their filings below, defendants interpreted these provisions as establishing “the absence of adjudicated full mental incapacity” as a “qualification for voting.” App. 24, 95.
Missouri law provides that a probate court shall place an individual under guardianship if it finds the individual “incapacitated.” Mo. Rev. Stat. § 475.079.1. An individual is “incapacitated” for purposes of that law when he is “unable by reason of any physical or mental condition to receive and evaluate information or to communicate decisions to such an extent that he lacks capacity to meet essential requirements for food, clothing, shelter, safety or other care.” Mo. Rev. Stat. § 475.010(9). A person may be placed under guardianship, for example, because of his inability to manage money or attend to his physical needs. App. 704. These impairments do not necessarily have any relation to the ability or capacity to vote. Id. Nonetheless, a finding that an individual is “incapacitated” under the statutory definition (which the parties to this case have referred to as a finding of “total” or “full” incapacity) triggers the voting ban in Article 8,
4

Section 2 of Missouri’s Constitution and in Section 115.133 of Missouri’s Revised Statutes.2
2. The Disenfranchisement of Plaintiff Scaletty
Robert Scaletty has been diagnosed with schizophrenia. App. 801,
804, 807. Carol Bahmueller, director of the community support program for
people with serious and persistent mental illness at Truman Medical Center
Behavioral Health, testified to a number of significant limitations Scaletty’s
disability has imposed on his life: “Without medications he has not taken
care of his basic daily needs, such as nutrition or appropriate clothing”;
“[w]ithout daily oversight he would not attend doctor appointments or take
his medications”; he “is easily angered when confronted with any issue he
does not agree with”; and he his currently “unable” to work “because of his
disability.” App. 807; see also id. at 804 (“He worked for many years but
eventually became unable to work because of his disability.”).
2 See also Mo. Rev. Stat. § 475.078.2 (finding of total incapacity “operate[s] to impose upon the ward . . . all legal disabilities provided by law, except to the extent specified in the order of adjudication”). An individual may also be found “partially incapacitated” if he “lacks capacity to meet, in part, essential requirements for food, clothing, shelter, safety, or other care without court-ordered assistance.” Mo. Rev. Stat. § 475.010(14). Unlike a finding of total incapacity, a finding of partial incapacity “does not operate to impose on the ward . . . any legal disability provided by law except to the extent specified in the order of adjudication.” Mo. Rev. Stat. § 475.078.1. This case does not involve individuals found only partially incapacitated.
5

In 1999, Scaletty was placed under full guardianship because of his mental illness. App. 804. Although his guardianship order specifically purported to reserve his right to vote, id. at 801, he in fact “was not allowed to vote after he was placed under guardianship,” id. at 803. Shortly before the 2004 election, Scaletty “received a letter from the Kansas City Board of Elections telling [him] that [he] was not eligible to vote because Missouri law does not allow people under guardianship to vote.” App. 801. Board staff, when contacted directly, confirmed “that [he] was not allowed to vote.” Id. Although he showed up at his polling place anyway, poll workers would not permit him to cast a ballot. Id. It was only after he had filed this action “that the Board of elections sent [him] a voter registration card.” Id.
Dr. Paul Appelbaum, former president of the American Psychiatric Association and one of the leading national experts on decisional competence,3 evaluated Scaletty’s competence to vote. App. 708-09. He
3 App. 697. Along with one colleague, Dr. Appelbaum “led the MacArthur Treatment Competence Study, the largest study ever undertaken of the decisionmaking competence of persons with mental disorders.” Id. at 699700. He has “published many papers, in both medical and legal journals, and several books that address this issue,” and he has “lectured on competence assessment in both medical schools and law schools.” Id. at 700. In recent years he has also “been part of a research project funded by the Greenwall Foundation and based at the University of Pennsylvania that is exploring issues related to voting by persons with cognitive impairments.”
6

reviewed Scaletty’s medical records, interviewed Scaletty, and obtained “a
general history of [his] psychiatric treatment, education and employment,
social functioning, general medical problems, and voting.” Id. at 704-05,
708. He also “performed a basic mental status examination.” Id. at 705.
The type of assessment performed by Dr. Appelbaum is standard for
determining competence. Id. at 796-99. Indeed, though the defendants’
expert disagreed that any standard could properly measure competence to
vote, id. at 737, even he acknowledged that Dr. Appelbaum did a competent
job of assessing Scaletty and the other individuals he evaluated for purposes
of this case. Id. at 734.
Using the standard applied in Doe v. Rowe, 156 F. Supp.2d 35, 52-58
(D. Me. 2001)—whether the individuals understand the nature and effect of voting4—Dr. Appelbaum determined that Scaletty “has a good grasp of the
Id. One of the tasks of that project has been the development of a standardized instrument to evaluate voting competence. Id. 4 As Dr. Appelbaum noted, this standard may in fact represent a higher standard than non-mentally ill persons are required to meet in order to vote. App. 703. The American Bar Association’s Commission on the Mentally Disabled has proposed a lower standard that would permit voting by any person who is able to provide the information reasonably required of all people seeking to register to vote. Id. at 702; see BRUCE D. SALES ET AL., DISABLED PERSONS AND THE LAW: STATE LEGISLATIVE ISSUES 111 (1982) (“Any person who is able to provide the information, whether orally, in writing, through an interpreter or interpretive device or otherwise, which is
7

electoral process, including the nature and effect of voting, and according to [the Rowe] standard would be considered competent to vote.” App. 709. According to Dr. Appelbaum, Scaletty believes “that voters should look at issues and compare candidates’ positions,” “reads the Kansas City Star and USA Today thoroughly every day,” “occasionally reads the Wall Street Journal,” and “listens to news on the radio.” Id. According to Scaletty’s father, he “has strong opinions about political matters” and “has a very good understanding of how elections work.” Id. at 804. Scaletty’s treating social worker concurred with these views. Id. at 808.
Scaletty himself testified that he wants “to be able to vote so that [he] can show that [he] disagree[s] with some policies and agree[s] with others.” Id. at 801. In particular, he “believe[s] in less taxation, less regulation” and is “very concerned that we are moving away from the values on which this country was founded.” Id. Scaletty routinely voted in local, state and federal elections for many years until he was stopped from voting due to his guardianship status. Id. at 801, 804.
reasonably required of all persons seeking to register to vote, shall be considered a qualified voter.”).
8

3. The Disenfranchisement of the Constituents of Plaintiff MOPAS MOPAS, a private, nonprofit entity, is the designated protection and
advocacy system for Missouri pursuant to the Protection and Advocacy for Individuals with Mental Illness Act, 42 U.S.C. § 10801 et seq. (PAIMI Act), and the Developmental Disabilities Assistance and Bill of Rights Act, 42 U.S.C. § 15001 et seq. See App. 790. As such, it is charged by federal law with advocating on behalf of the rights of individuals with psychiatric and developmental disabilities. Id. at 791.
a. The Disenfranchisement of Competent Voters—Pursuant to that mandate, MOPAS has numerous constituents who, like plaintiff Scaletty, are under full guardianship and are disenfranchised due to their guardianship status. The record contains particular discussions of seven of these individuals. App. 705-06 (C.S.);5 id. at 706-08 (D.C.); id. at 709-10 (T.P.); id. at 710-11 (C.W.); id. at 786 (T.M.); id. at 828 (L.O.); id. at 744 (“Jane Doe”). These individuals lost the right to vote upon being placed under full guardianship, without an individualized assessment of their voting capacity
5 Appellants use initials to refer to individuals whose identities are disclosed only in confidential documents covered by a protective order entered by the parties and filed under seal in a separate appendix.
9

or even any discussion of voting capacity. Id. at 810, 813 (C.S.); id. at 746
(D.C.); id. at 825 (T.P.) 6; id. at 743 (C.W.); id. at 834 (T.M., L.O.).
Dr. Appelbaum evaluated four of these individuals and concluded that
they had the capacity to vote despite being under full guardianship. App.
705-11. Dr. Appelbaum based his conclusions on, inter alia, his
observations that these individuals were interested in political issues, were
involved in political advocacy, kept up with current events, expressed
opinions on how they would choose a candidate, understood the voting
process, and, in some cases, had voted in the past.7 These individuals’
6 T.P. continued to vote after he had been placed under guardianship. His guardianship file was lost, neither he nor the guardian was aware of the guardianship until his file was found decades later, and even then, no one informed him that he was ineligible to vote. App. 820, 825. 7 See, e.g., App. 706 (C.S. “follows current events and has strong opinions about the performance of the governor and the president on issues of concern to him”; “two years ago he went to Jefferson City to lobby his state representative and senator against cuts in Medicaid”; and he “has participated actively in political affairs in People First, an organization of persons with developmental disabilities” by serving as a local and statewide officer); id. at 707 (D.C. voted in 2000 elections prior to being placed under guardianship; he reads the newspaper and follows television and radio news; he “has lobbied his state senator in Jefferson City about threatened Medicaid cuts”; and he gave a speech to fellow members of People First in a successful effort to be elected to the group’s statewide steering committee); id. at 710 (T.P. “has been voting for many years”, see n.6; he “looks at the newspaper every day” and “listens to television and radio news”; and he is “particularly concerned about cuts to Medicaid”); id. at 711 (C.W. understands the voting process and “gets her news from the radio daily”).
10

treating professionals and/or guardians agreed with Dr. Appelbaum’s conclusion that they had the capacity to vote. See, e.g., App. 813 (C.S.’s guardian); id. at 748 (D.C.’s guardian); id. at 820-21, 741 (T.P.’s treating social worker and director of his community program); id. at 757 (C.W.’s treating psychiatrist).
A fifth individual, T.M., was not evaluated by Dr. Appelbaum but was evaluated by a treating professional, Dr. Karen MacDonald, who concluded that she “has the capacity to vote. She understands how the voting process works and what the effect of an election is. She is capable of making choices about candidates and issues.” Id. at 786.8 And People First’s statewide adviser testified that “Jane Doe” “clearly has the capacity to vote, and her treating psychiatrist has confirmed that she has that capacity.” Id. at 744.
These individuals are not isolated examples—Dr. Appelbaum found them to be “typical of a substantial group of persons under guardianship in every state, who whatever their other functional limitations remain competent to vote.” App. 712. Other knowledgeable witnesses—including
8 T.M.’s guardian did not permit her to travel to Kansas City to be evaluated by Dr. Appelbaum. App. 712. The same guardian refused permission for L.O. to be evaluated by Dr. Appelbaum. Id. at 829-33.
11

Missouri service providers, Public Administrators, and advocates—
confirmed that many individuals who are under full guardianship in
Missouri have the capacity to vote.9 Even defendants’ expert acknowledged
that some people under full guardianship have a good understanding of how
the voting process works. Id. at 736-37.
b. The Lack of Advance Notice or Subsequent Opportunity to Restore
Voting Rights—For many of the individuals discussed in the record, the
“subject of voting never came up at the guardianship hearing,” App. 813
(C.S.), and they received no notice that a guardianship order would result in
disenfranchisement, id. See also id. at 825 (T.P.); id. at 743 (C.W.); id. at
746 (D.C.); id. at 834 (T.M. and L.O.). In that way, as well, those
individuals are typical; the Public Administrators of four separate counties
9 For example, Mary Frances Broderick, a service provider with over thirty years of experience working with individuals with mental disabilities in Missouri, stated that “the vast majority of individuals” she has observed who are under guardianship have the capacity to vote. App. 740. Laura Walker, who “worked with hundreds of people with disabilities” across Missouri in her capacity as a statewide advisor for People First, observed that a large number of People First members under guardianship (including full guardianship) “clearly have the ability to understand the voting process,” and that many “have voted in the past, understand how voting works, and have a good understanding of issues that are at stake in the elections”—and that “many of them have come to the State Capitol to lobby their state representatives.” Id. at 743. Public Administrators in three counties also confirmed that many of their wards who are under full guardianship have the capacity to vote. Id. at 747, 750, 754.
12

testified that the subject of voting rarely, if ever, is raised in guardianship hearings, even though a guardianship order results in disenfranchisement. See id. at 746 (Boone County); id. at 834 (Camden County); id. at 750 (Lincoln County). See also id. at 753 (prior to the initiation of this lawsuit, voting was not raised in guardianship proceedings in Jefferson County). Even the attorneys appointed to represent individuals subject to guardianship do not discuss voting issues with their clients. Id. at 753. The defendant state officials do not provide information to probate courts, public administrators, private guardians or wards concerning the effect of guardianship on voting rights. Id. at 839-44, 848-51, 813.
Even if Missouri law would permit them to seek to have their right to vote restored despite being under full guardianship, the individuals who were the subject of testimony in the district court were unable to obtain such a restoration; their guardians either forbade them to do so or failed to take any steps to do so. App. 743 (guardian did not permit C.W. to seek to vote); id. at 744 (Jane Doe’s guardian did not believe individuals under guardianship should be permitted to vote); id. at 828, 831-35 (guardian did not take any action after learning that L.O. and T.M. expressed interest in getting their right to vote); id. at 813 (guardian had no time or resources to try to get C.S.’s voting rights restored); id. at 747, 748 (guardian has
13

resources to seek to obtain voting rights only for wards who specifically communicate a desire to vote and was unaware that D.C. wished to vote). Again, those individuals were typical: Connie Hendren, Public Administrator for Boone County, testified to extensive barriers that stand in the way of wards seeking restoration of their voting rights even in the rare instances where probate judges consider restoring voting rights to individuals under full guardianship. Id. at 746-47.
4. Proceedings Below On October 8, 2004, Plaintiff Steven Prye filed this action. R. 1. Prye had lost his right to vote as a result of his having been placed under full guardianship by the state of Illinois, where he had lived before moving to Missouri. Id. ¶ 17. Prye asserted claims under: Title II of the Americans with Disabilities Act (ADA), 42 U.S.C. § 12131 et seq.; Section 504 of the Rehabilitation Act, 29 U.S.C. § 794; and the Equal Protection and Due Process Clauses of the U.S. Constitution, as enforced through 42 U.S.C. § 1983. Id. ¶¶ 18-46. The Complaint sought a declaration that the voting ban violated federal law and an injunction permitting Prye to register and vote. Id. at 13. On December 6, 2004, plaintiffs filed a First Amended Complaint that added MOPAS and two individual plaintiffs, Scaletty and Patrick Sharp. R. 54. All claims of Prye and Sharp, and all claims against local Board of
14

Elections officials, were subsequently dismissed by stipulation of the parties. R. 85, 86, 97, 98.10 Thus, as the case went to judgment, the two plaintiffs were Scaletty and MOPAS, and the two defendants were Carnahan and Nixon. Add. 5.
On March 15, 2006, the parties filed cross-motions for summary judgment. App. 376, 380. On June 7, the district court granted summary judgment to the defendants. Add. 1-13. The court first addressed the issue of standing. It had “no doubt that at the time Scaletty joined the suit as a plaintiff he was suffering an injury in fact because he was denied the right to vote.” Add. 3. Although local elections officials had voluntarily permitted Scaletty to vote after he joined the suit, the court concluded that the defendants could not sustain the “heavy burden” of showing that it is “absolutely clear” that their wrongful behavior could not reasonably be expected to recur. Id. at 4 (quoting Buckhannon Bd. & Care Home, Inc. v. West Virginia Dep’t of Health & Human Resources, 532 U.S. 598, 609 (2001); Friends of the Earth, Inc. v. Laidlaw Envt’l Servs. (TOC), Inc., 528 U.S. 167, 189 (2000)). Accordingly, the court had jurisdiction to consider his claims under the “voluntary cessation” exception to mootness. Add. 3-4.
10 Prye moved out of Missouri and is now deceased.
15

The court also held that MOPAS met the requirements for organizational standing. Id. at 4-5.
Reaching the merits, the district court held that an election is “undeniably an activity of a public entity” covered by Title II of the ADA. Add. 8. But it nonetheless ruled that Missouri’s voting ban did not violate the ADA (or the Rehabilitation Act, which applies the same standards). Id. at 9-10. Although the court acknowledged the “constitutional and statutory language indicating that a person under a full order of protection is presumed incompetent and cannot vote,” it determined that “the totality of Missouri law” requires “an individualized determination of the individual’s mental capacity and the entry of an order that is no more limiting than necessary to protect the individual.” Id. at 9. Without explaining how its reading was consistent with the broad and unqualified constitutional and statutory ban on voting by individuals under guardianship, the district court concluded that individuals under full guardianship in Missouri can retain the right to vote if they “persuade[] a probate court” that they are “not incapacitated with respect to [their] ability to vote.” Id. It noted that its conclusion might be different if Missouri law dictated that any person with a
16

guardian could not vote, “regardless of the person’s abilities and limitations.” Id. at 10. “Such a situation might violate the ADA.” Id.11
Based on the same reading of Missouri law, the district court also
ruled that Missouri’s voting ban did not violate the Constitution. Add. 12.
The fact that plaintiff Scaletty was able to have his right to vote preserved in
his guardianship order, even though that right was not honored until this suit
was filed, demonstrated to the court that that Missouri law permits probate
courts to make individualized determinations of voting capacity. Id.
STANDARD OF REVIEW
This Court reviews a district court’s grant of summary judgment de
novo. E.g., Acton v. City of Columbia, 436 F.3d 969, 975 (8th Cir. 2006).
The district court’s interpretations of state and federal law are also reviewed
de novo. E.g., Salve Regina College v. Russell, 499 U.S. 225, 239-240
(1991) (“The obligation of responsible appellate review and the principles of
11 The district court also noted that plaintiffs presented evidence about individuals who were denied the right to vote based on guardianship proceedings even though they had the capacity to vote. Add. 10. The court stated that those individuals were not “irrevocably branded” as unable to vote, because they “have recourse in the probate proceedings.” Id. To the extent that plaintiffs intended to contest the correctness of probate courts’ determinations in those cases, the court ruled, such an endeavor would violate preclusion principles and the Rooker-Feldman doctrine. Id. at 11 (citing Rooker v. Fidelity Trust Co., 263 U.S. 413 (1923); District of Columbia Court of Appeals v. Feldman, 460 U.S. 462 (1983)).
17

a cooperative judicial federalism underlying Erie require that courts of appeals review the state-law determinations of district courts de novo.”); In re Derailment Cases, 416 F.3d 787, 795 (8th Cir. 2005) (same); Jessep v. Jacobson Transp. Co., Inc., 350 F.3d 739, 741 (8th Cir. 2003) (interpretation of federal statute is reviewed de novo).
SUMMARY OF ARGUMENT I. Missouri’s voting ban violates the ADA and the Rehabilitation Act. By prohibiting people under guardianship from voting, that ban singles out a group of people with disabilities and excludes them from participation in an important activity of state government. It therefore discriminates against individuals with disabilities “by reason of” their disabilities. 42 U.S.C. § 12132; accord 29 U.S.C. § 794(a). Moreover, as the record in this case shows, the Missouri voting ban discriminates against “qualified” individuals with disabilities. 42 U.S.C. § 12132; accord 29 U.S.C. § 794(a). Under Missouri law, individuals are placed under guardianship because of limitations in their ability to care for themselves. There is no connection between self-care skills and the ability to understand the nature and effect of voting, yet Missouri’s voting ban disenfranchises persons under guardianship without any inquiry into whether they are competent to vote. That broad, categorical disenfranchisement
18

violates the core requirement of the ADA and the Rehabilitation Act—that the state must make an individualized inquiry before it determines that a person with a disability is not “qualified.”
The district court determined that Missouri law does not categorically disenfranchise all individuals under guardianship. But that reading flies in the face of the plain text of the constitutional and statutory provisions that impose Missouri’s voting ban. Missouri’s constitution states that “no person who has a guardian of his or her estate by reason of mental incapacity . . . shall be entitled to vote.” Mo. Const. Art. 8, § 2 (emphasis added). And the implementing Missouri statute similarly states that “[n]o person who has been adjudged incapacitated shall be entitled to register or vote.” Mo. Rev. Stat. 115.133.2 (emphasis added). Those provisions, which specifically govern the effect of guardianship adjudications on the right to vote, are unqualified and categorical. None of the statutory provisions on which the district court relied—general provisions about the guardianship process that make no reference to voting—undermines the plain import of the constitutional and statutory voting ban. And indeed, defendants themselves recognized that very point until their motion for summary judgment in this case, when “[i]n a last ditch effort to save” the ban, Rowe, 156 F. Supp.2d at
19

45, they changed their mind and took the position that the voting ban is not categorical.
Even under the unduly generous reading adopted by the district court, Missouri law would still fail to provide the individualized inquiry required by the ADA and Rehabilitation Act. Under the district court’s reading, an individual placed under full guardianship would still be disenfranchised unless the probate court made a specific determination to the contrary. If the respondent in a guardianship proceeding did not know to ask for an order to preserve voting rights—and the record shows that the issue of voting is rarely, if ever, raised in guardianship hearings—he would be disenfranchised even in the absence of any inquiry into his competence to vote. And even if a respondent did seek an order preserving voting rights, under the district court’s reading, he would have to overcome the presumption that he is incompetent. But the ADA and Rehabilitation Act prohibit the state from excluding individuals with disabilities from voting based on presumptions about what a class of persons with disabilities can or cannot do.
II. Missouri’s voting ban also violates the Equal Protection and Due Process Clauses of the Fourteenth Amendment. By completely and indefinitely disenfranchising individuals under guardianship, that ban imposes a “severe” restriction on the right to vote and accordingly triggers
20

strict scrutiny. Whether read according to its plain terms or according to the district court’s inventive interpretation, the voting ban cannot survive that scrutiny. By the plain terms of the Missouri Constitution and laws, an adjudication of incapacity automatically and inevitably results in disenfranchisement—but strict scrutiny prohibits the state from disenfranchising an entire group of people based on such a broad prophylactic rule. Even under the district court’s interpretation, Missouri law still disenfranchises persons under guardianship without the required individualized determination of voting competence. And if the district court’s interpretation is correct, the voting ban violates due process; state law fails to provide respondents in guardianship hearings notice that voting rights are at stake and a meaningful opportunity to assert their competency to vote.
ARGUMENT I. MISSOURI’S VOTING BAN VIOLATES THE ADA AND THE
REHABILITATION ACT Missouri prohibits anyone “who has a guardian of his or her estate or person by reason of mental incapacity” from voting. Mo. Const., Art. 8, § 2. That voting ban, as implemented by Missouri statutes, violates both Title II of the Americans with Disabilities Act (ADA), 42 U.S.C. § 12132, and Section 504 of the Rehabilitation Act, 29 U.S.C. § 794. It applies
21

exclusively to a group of people who have a “disability” as defined in those statutes, and it excludes them from voting “by reason of such disability.” 42 U.S.C. § 12132; accord 29 U.S.C. § 794(a). It does so, moreover, even in the absence of any individualized inquiry into a person’s actual competence to vote.
Contrary to the view of the district court, Missouri’s voting ban categorically disenfranchises all individuals who are under full guardianship due to “mental incapacity.” That is true even though the criteria for “incapacity” under Missouri law have nothing to do with the capacity to vote. Even under the district court’s unduly generous reading, Missouri law still disenfranchises people with mental impairments in cases where the state has not proven that they are incompetent to vote. As the evidence shows, see p. 7-12, supra, the voting ban has disenfranchised many otherwise qualified Missouri residents with disabilities who are competent to vote. The district court therefore erred in granting summary judgment to the defendants on the ADA and Rehabilitation Act claims. To the contrary, it should have granted summary judgment to the plaintiffs.
A. The Voting Ban Discriminates Against Individuals with Disabilities “By Reason of” Their Disabilities
Title II of the ADA provides that “no qualified individual with a disability shall, by reason of such disability, be excluded from participation
22

in or be denied the benefits of the services, programs, or activities of a
public entity, or be subjected to discrimination by any such entity.” 42
U.S.C. § 12132. To establish a violation of Title II, a plaintiff must show
that:
(1) he is a qualified individual with a disability; (2) he was excluded from participation in or denied the benefits of a public entity’s services, programs, or activities, or was otherwise discriminated against by the entity; and (3) that such exclusion, denial of benefits, or other discrimination, was by reason of his disability. Layton v. Elder, 143 F.3d 469, 472 (8th Cir. 1998). Section 504 of the Rehabilitation Act12 applies the same standards to entities that receive
federal financial assistance. See Allison v. Department of Corrections, 94
F.3d 494, 497 (8th Cir. 1996). See also Barnes v. Gorman, 536 U.S. 181,
184-85 (2002) (Title II provides same rights, procedures, and enforcement
remedies as the Rehabilitation Act); Bragdon v. Abbott, 524 U.S. 624, 631-
632 (1998) (ADA incorporates substantive requirements of the
Rehabilitation Act and its regulations).
12 Section 504 provides, in relevant part: No otherwise qualified individual with a disability in the United States, as defined in section 705(20) of this title, shall, solely by reason of her or his disability, be excluded from the participation in, be denied the benefits of, or be subjected to discrimination under any program or activity receiving Federal financial assistance . . . .
29 U.S.C. § 794(a).
23

There is no doubt that the defendants are subject to the requirements of the ADA and the Rehabilitation Act. Defendants Carnahan and Nixon, sued in their official capacities, are responsible for the operation of state agencies—the Secretary of State’s office and the Office of the Attorney General. These agencies are “public entities” covered by Title II of the ADA. 42 U.S.C. § 12131(1) (“public entities” include any state government or department or agency of state government). They also receive federal funds and are therefore covered by Section 504 of the Rehabilitation Act. R. 64 ¶ 21. This Court has approved suits against state officials under Ex parte Young, 209 U.S. 123 (1908), to enforce both the ADA and the Rehabilitation Act. See Randolph v. Rodgers, 253 F.3d 342, 348-349 (8th Cir. 2001).
Nor is there any doubt that plaintiff Scaletty and the other constituents of plaintiff MOPAS who are under full guardianship are “individuals with disabilities” protected by the ADA and Rehabilitation Act. Those statutes provide that an individual has a “disability” if: (1) he has “a physical or mental impairment that substantially limits one or more of the major life activities”; (2) he has “a record of such an impairment”; or (3) he is “regarded as having such an impairment.” 42 U.S.C. § 12102(2); accord 29 U.S.C. § 705(20)(B).
24

Individuals under full guardianship satisfy each of these three prongs. By definition, they have been adjudicated to be substantially limited in the major life activity of self-care. See 28 C.F.R. § 35.104 (“caring for one’s self” is a major life activity); Bragdon, 524 U.S. at 638-639 (same). Under Missouri law, an individual cannot be placed under full guardianship unless he is found to be “unable by reason of any physical or mental condition to receive and evaluate information or to communicate decisions to such an extent that he lacks capacity to meet essential requirements for food, clothing, shelter, safety or other care such that serious physical injury, illness, or disease is likely to occur.” Mo. Rev. Stat. § 475.010. If that adjudication is correct, the individual is actually substantially limited in the major life activity of caring for himself. Even if the adjudication is incorrect, it is itself a “record” of a substantially limiting impairment, and it demonstrates that the individual is “regarded as having” such an impairment.13
13 The testimony on the summary judgment record confirms that plaintiff Scaletty and other constituents of plaintiff MOPAS are substantially limited in self-care. Plaintiff Scaletty has schizophrenia and requires daily oversight to ensure that his basic needs, such as nutrition and appropriate clothing, are met. App. 804, 807. C.S. is substantially limited in the ability to meet basic food, clothing and shelter needs due to bipolar disorder and mild mental retardation. Id. at 813. D.C. is substantially limited in his ability to manage financial resources and engage in daily activities due to bipolar disorder,
25

Finally, it is clear that Missouri’s voting ban excludes individuals
from participation in voting, and therefore discriminates against them, “by
reason of their disabilities.” 42 U.S.C. § 12132. The discrimination is
apparent on the face of both the state constitutional and statutory provisions.
The Missouri Constitution prohibits voting by any person who has been
appointed a guardian “by reason of mental incapacity,” Mo. Const., Art. 8, §
2, and Missouri’s election code prohibits voting by any person “who has been adjudged incapacitated,” Mo. Rev. Stat. § 115.133(2).14 As plaintiffs
have shown, under Missouri law an adjudication of incapacity necessarily
rests on a determination that the individual is substantially limited in self-
care. The very reason that defendants have barred these individuals from
voting is that they have been determined to have a condition that is a
“disability” under the ADA and the Rehabilitation Act. Disenfranchisement
pervasive developmental disorder and mild retardation. Id. at 747. T.P. is substantially limited in financial management and daily activities due to organic brain syndrome and mild mental retardation. Id. at 819-20. C.W. is substantially limited in walking, speaking, and caring for herself due to cerebral palsy and bipolar disorder. Id. at 757. And T.M. is substantially limited in self-care due to a depressive disorder, oppositional defiant disorder, mood disorder, and borderline intellectual functioning. Id. at 786. 14 While Scaletty’s guardianship order apparently indicated that he retained the right to vote despite an adjudication of “total incapacity,” he is still barred from voting by the plain language of the voting ban and was, in fact, repeatedly prohibited from voting by poll workers and election officials since being placed under guardianship. See p. 6, supra.
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on the basis of that determination is, as a logical and legal matter, disenfranchisement “by reason of” disability. See Hargrave v. Vermont, 340 F.3d 27, 36 (2d Cir. 2003) (state law that applied only to individuals civilly committed due to their mental illness discriminated based on disability).
B. The Voting Ban Discriminates Against “Qualified” Individuals with Disabilities
1. The ADA and the Rehabilitation Act Require an Individualized Inquiry Into Competence to Vote
Neither the ADA nor the Rehabilitation Act prohibits all disabilitybased discrimination; those statutes prohibit discrimination only when it affects “qualified” individuals with disabilities. 42 U.S.C. § 12132; accord 29 U.S.C. § 794(a). A “qualified individual with a disability” is a person who, “with or without reasonable modification to rules, policies, or practices,” meets “the essential eligibility requirements for the receipt of services or the participation in programs or activities provided by a public entity.” 42 U.S.C. § 12131(2); see also School Bd. v. Arline, 480 U.S. 273, 287 n.17 (1987) (detailing “otherwise qualified” element under the Rehabilitation Act); Pottgen v. Missouri St. High Sch. Activities Ass’n, 40 F.3d 926, 929 (8th Cir. 1994) (under Rehabilitation Act, “individuals with disabilities need only meet a program’s necessary or essential requirements”).
27

A state cannot simply define the “essential eligibility requirements” by fiat as including the requirement that participants have no disability. See Alexander v. Choate, 469 U.S. 287, 301 & n.21 (1985) (“Antidiscrimination legislation can obviously be emptied of meaning if every discriminatory policy is ‘collapsed’ into one’s definition of the relevant benefit.”) (internal quotation marks omitted). The ADA and the Rehabilitation Act instead demand an independent assessment of whether criteria that exclude people with disabilities are truly “essential.” 42 U.S.C. § 12131(2). See also 28 C.F.R. § 35.130(b)(8) (eligibility criteria that screen out individuals with disabilities are unlawful unless they are “necessary for the provision of the service, program, or activity”).
And that determination cannot be made on a blanket basis. Rather, the law requires an “individualized inquiry,” Arline, 480 U.S. at 287, into the qualifications of the particular person who seeks access to the state’s programs or activities. See PGA Tour, Inc. v. Martin, 532 U.S. 661, 690 (2001) (applying “the ADA’s basic requirement that the need of a disabled person be evaluated on an individual basis”); Olmstead v. L.C. ex rel. Zimring, 527 U.S. 581, 601-602 (1999) (conducting individualized inquiry into whether plaintiffs were “qualified individuals” under Title II of the ADA). “Such an individualized inquiry is essential if the law is to achieve
28

its goal of protecting disabled individuals from discrimination based on prejudice, stereotypes, or unfounded fear.” Stillwell v. Kansas City Bd. of Police Comm’rs, 872 F. Supp 682, 686 (W.D. Mo. 1995) (quoting Arline, 480 U.S. at 287).
The requirement of an individualized inquiry is fundamental to the disability discrimination laws. As the Supreme Court observed in a different context, “a system in which persons often must be treated as members of a group of people with similar impairments, rather than as individuals,” is “contrary to both the letter and the spirit of the ADA.” Sutton v. United Air Lines, Inc., 527 U.S. 471, 483-484 (1999); see Kapche v. City of San Antonio, 304 F.3d 493, 499 (5th Cir. 2002) (holding that cases like Sutton and PGA Tour “consistently point to an individualized assessment mandated by the ADA under various sections of the Act”). Even though an individualized inquiry may in some circumstances “consume more resources and involve less logistical ease, such an inquiry is precisely what the ADA requires,” because Congress “explicitly warned that ‘overprotective rules and policies’ erect discriminatory barriers to people with disabilities.” Dudley v. Hannaford Bros. Co., 333 F.3d. 299, 310 (1st Cir. 2003) (quoting 42 U.S.C. § 12101(a)(5)). The preamble to the Department of Justice’s ADA Title II regulations underscores the point: “public entities are required
29

to ensure that their actions are based on facts applicable to individuals and not on presumptions about what a class of individuals with disabilities can or cannot do.” 28 C.F.R. Pt. 35, App. Accordingly, an individual cannot be rejected from participating in a program automatically based on disability “without considering the individual’s abilities.” Theriault v. Flynn, 162 F.3d 46, 50 (1st Cir. 1998). See also Thompson v. Davis, 295 F.3d 890, 898 n.4 (9th Cir. 2002) (ADA Title II requires “an individualized assessment”), cert. denied, 538 U.S. 921 (2003).
The testimony presented to the district court highlights the importance of individualized assessments in the voting context. As Dr. Appelbaum explained, “many persons with cognitive limitations can make some decisions but not others, because some tasks are intrinsically more difficult for them.” App. 700. Even people with significant mental disabilities nonetheless have the capacity to vote. Id. at 703-04. To the extent that the capacity to vote is an essential eligibility requirement for voting,15 the ADA
15 Plaintiffs do not challenge Missouri’s decision to make the capacity to vote an eligibility requirement. The capacity to vote may not be an essential eligibility requirement for voting, but even if it is, plaintiffs meet that requirement. The National Voter Registration Act permits, but does not require, states to remove voters from the rolls based on mental incapacity. 42 U.S.C. § 1973gg-6(a)(3)(B). The capacity to vote is far from a universal eligibility requirement. A number of states do not have any voter qualification standard concerning capacity. See, e.g., Kyle Sammin & Sally
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and Rehabilitation Act prohibit the state from disenfranchising a person who is under guardianship without making an individualized determination that he lacks the competence to vote. 2. Missouri Law Categorically Disenfranchises Individuals Adjudicated
Totally Incapacitated a. Missouri Law Unnecessarily Disenfranchises People Under Guardianship Without Evaluating Competence to Vote—By the plain terms of the Missouri Constitution and laws, an individual who is “incapacitated” is categorically barred from voting. Mo Const., Art. 8, § 2; Mo. Rev. Stat. § 115.133.2. In determining whether an individual is “incapacitated,” a probate court looks only to whether he can “meet essential requirements for food, clothing, shelter, safety, or other care.” Mo. Rev. Stat. § 475.010(9). But there is simply no reason why those self-care skills are “essential eligibility requirements” for voting, 42 U.S.C. § 12131(2), or are “necessary for the provision of the service, program, or activity” of voting, 28 C.F.R. § 35.130(b)(8). As the record demonstrates, many individuals whose
Balch Hurme, Guardianship and Voting Rights, in BIFOCAL, Vol. 26, No. 1, at 13 (Fall 2004), http://www.abanet.org/aging/261.pdf. The American Bar Association’s Commission on the Mentally Disabled recommended repeal of all disability-based restrictions on voting rights, and for states that insisted on some type of competence standard, the ABA recommended a minimal standard allowing voting by anyone able to provide the basic information needed to register. SALES ET AL., supra, at 111.
31

cognitive limitations make them unable to care for themselves nonetheless
retain the ability to understand the nature and effect of voting. See App.
703-04; p. 6-12, supra. See also Rowe, supra (applying this standard for
competence to vote). By failing to make an individualized assessment of
voting competence, the Missouri scheme violates the ADA and
Rehabilitation Act.
Indeed, experience in other states makes it particularly difficult to say
that disenfranchisement of people under full guardianship implements an
“essential eligibility requirement” or is “necessary” for voting. Many states do not have any bar on voting by people under guardianship.16 Many other
states bar voting by people under guardianship only upon a specific determination that they lack the competence to vote.17 The examples of
16 See, e.g., Sammin & Hurme, supra, at 13 (describing ten states with no constitutional or statutory prohibitions on voting by people under guardianship). 17 See ,e.g., Wash. Rev. Code § 11.88.010; Conn. Gen. Stat. § 17a-541; Del. Code Ann. Tit. 15, § 1701, Cal. Prob. Code § 1910; Haw. Rev. Stat. § 1123(a); Okla. Stat. Ann. Tit. 30 § 3-113(B)(1); N.D. Cent. Code § 30.1-2804(3); Ark. Code Ann. §28-65-302(a)(2)(E); Idaho Code § 66-346(a)(6); Ohio Rev. Code Ann. § 3503.18; Or. Const. Art. II § 3; Opinion of the [Massachusetts] Elections Division concluding that limitations imposed on those “‘under guardianship’ must be interpreted for voting purposes to refer only to guardianships that contain specific findings prohibiting voting.” (reprinted in JOHN H. CROSS ET AL., GUARDIANSHIP AND CONSERVATORSHIP IN MASSACHUSETTS 149 (2000)). This list is not an exhaustive one.
32

these other statutory schemes, which defendants’ own expert acknowledged to be “reasonable,” App. 738, demonstrate that a categorical ban on voting by all people under full guardianship is not “essential” or “necessary” to the activity of voting. Just as in Rowe, 156 F. Supp.2d at 58, the district court should have concluded that Missouri’s voting ban violates the ADA and the Rehabilitation Act.
b. The District Court’s Reading of Missouri Law Conflicts With the Plain Text of Missouri’s Constitution and Statutes—The district court did not deny that the ADA and Rehabilitation Act demand an individualized inquiry. But it read the Missouri statutory scheme as permitting probate courts to reserve the voting rights even of individuals whom those courts deem to be “totally incapacitated.” Add. 7. Based on that reading, the court held that state law provided a sufficiently individualized determination of voting competence to pass muster under the ADA and Rehabilitation Act. That reading fundamentally misconstrues Missouri law.
The relevant provision of the Missouri Constitution is clear and admits of no exceptions: “[N]o person who has a guardian of his or her estate or person by reason of mental incapacity, appointed by a court of competent jurisdiction . . . shall be entitled to vote.” Mo. Const. Art. 8, § 2
33

(emphasis added).18 Although the district court sought to show that Missouri statutes allow some people who have been adjudicated “totally incapacitated” to vote, it never explained how that interpretation could comport with the plain constitutional text. But in Missouri as in federal law, a statute that conflicts with the Constitution cannot stand. Asbury v. Lombardi, 846 S.W.2d 196, 202 (Mo. 1993). By reading the state guardianship statutes in a manner that invites a conflict with the plain text of the state constitution, the district court contravened that bedrock principle.
In any event, the district court’s interpretation conflicts with the plain text of the Missouri statutes themselves. The state’s election code specifically provides that “[n]o person who has been adjudged incapacitated shall be entitled to register or vote.” Mo. Rev. Stat. § 115.133.2 (emphasis added). That provision contains no exceptions. Nor does it contain any language that permits probate courts to override its prohibitions in particular cases. It stands, like the state constitutional provision it implements, as an absolute ban on voting by individuals under guardianship due to mental incapacity.
18 That absolute disenfranchisement of individuals under guardianship contrasts starkly with the language in the same section that merely states that “persons convicted of felony, or crime connected with the exercise of the right of suffrage may be excluded by law from voting.” Mo. Const., Art. 8, § 2 (emphasis added).
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That reading is confirmed by a review of other Missouri statutes that address the effects of a guardianship adjudication. In contrast to Section 115.133.2, which categorically disqualifies people adjudged incapacitated from voting, the statutes governing marriage and driving create only a rebuttable presumption of incompetence for those adjudged incapacitated. See Mo. Rev. Stat. § 451.020 (“It shall be presumed that marriages between persons who lack capacity to enter into a marriage contract are prohibited unless the court having jurisdiction over such persons approves the marriage.”) (emphasis added); id. §§ 302.010(7), 302.291.1, .2 (a person who has been adjudged incapacitated is presumed “incompetent to drive a motor vehicle” but the presumption may be rebutted after an individualized examination). The marriage and driving statutes show that when the Missouri legislature intended to allow people under guardianship to seek individualized relief from the legal disabilities imposed on them, it made that intent clear in the statutory text. The absolute, unqualified nature of the statute prohibiting voting by people under guardianship demonstrates that the legislature did not intend to permit individuals to seek relief from that legal disability. Cf. Russello v. United States, 464 U.S. 16, 23 (1983) (when Congress includes language of one section of a statute and omits it in another section, that omission is generally presumed to be intentional).
35

In determining that Missouri law permits people adjudicated incapacitated to retain their voting rights, the district court relied on a general guardianship statute that makes no reference to voting rights. That general provision states that a finding of full incapacity operates to impose “all legal disabilities provided by law, except to the extent specified in the order of adjudication.” Mo. Rev. Stat. § 475.078.2. The provision further states that “[a] person who has been adjudged incapacitated . . . shall be presumed to be incompetent,” and that a probate court may determine that an incapacitated person is “incompetent for some purposes” and “competent for other purposes.” Id. § 475.078.3.
But that general language cannot overcome the specific statutory bar on voting by people who have been adjudicated incapacitated. See State ex rel. Jackson County v. Public Service Comm’n, 532 S.W.2d 20, 27 (Mo. 1975) (applying the rule of statutory construction that the specific controls the general), cert. denied, 429 U.S. 822 (1976); see also HSCS-Laundry v. United States, 450 U.S. 1, 6 (1981) (same); Servewell Plumbing, LLC. v. Federal Ins. Co., 439 F.3d 786, 791 (8th Cir. 2006) (same). Rather, the plain import of Section 475.078 is to establish a procedure for probate courts to dispense with those “legal disabilities”—like the prohibitions on marriage and driving—that state law makes only optional. Nothing in that section
36

purports to authorize probate courts to disregard the clear and unqualified
voting ban.19
c. The District Court’s Reading of Missouri Law Conflicts with
Positions Taken By the Defendants Themselves—Indeed, until their motion
for summary judgment in this case, the defendants consistently took the
position that “[i]f an individual is declared incompetent, he is not otherwise
eligible to vote in Missouri because he fails to meet Missouri’s qualification
for voting: the absence of adjudicated full mental incapacity.” App. 95.20
19 The record in this case demonstrates that most probate courts have interpreted the law similarly and have not reserved the right to vote for individuals under full guardianship or even raised the issue in full guardianship proceedings. See p. 12-13, supra. While the district court pointed to the fact that plaintiff Scaletty’s right to vote was reserved as evidence that Missouri law does permit individuals under full guardianship to have their right to vote reserved, the reservation of Scaletty’s right to vote proved ineffective, and he was still denied the right to vote based on his guardianship status. See p. 6, supra. Plaintiffs do not point out this evidence of most probate courts’ practices, as the district court thought (Add. 11), to challenge the decisions made by those courts in individual cases. To the contrary, plaintiffs point this out to underscore that those probate courts were applying Missouri law according to its plain terms. 20 See also id. at 95 [id. at 25] (“[A]n inability to make appropriate choices in these basic areas [of food, clothing, medical care, housing, safety, and property] precludes a person subject to full guardianship from participation in Missouri’s electoral process . . . .”); id. at 96 [id. at 26] (“An individual who has been adjudicated fully incapacitated due to profound mental illness lacks the ability to make very basic decisions and therefore, Missouri’s voter qualification criteria that prohibits adjudicated incapacitated individuals from voting, is a necessary component of Missouri’s election process.”).
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Defendants drew a firm line between individuals under full guardianship and those under partial guardianship, with only the latter being permitted to vote. Id. at 101 (Missouri’s voting prohibition “does not apply to the mentally ill generally, or those who have been adjudicated partially incapacitated.”). Defendants specifically rejected the notion that individuals under full guardianship in Missouri could somehow retain their capacity to vote; they asserted that “Missouri’s Constitution steers clear of this morass [of how to determine capacity to vote] precisely because it avoids defining capable voters from incapable voters. Instead, Missouri law qualifies its voters by a content neutral standard of general mental incompetence . . . .” Id. at 107. In fact, defendants characterized plaintiffs’ argument that the ADA and Constitution require an individualized assessment of capacity to vote “as an attempt by plaintiffs to secure judicial substitution of Missouri’s elector qualification for one more to plaintiffs’ liking.” Id. at 109.21
Even in their Motion for Summary Judgment, defendants reiterated their prior unqualified contentions that individuals who have been
21 Defendants took the same position in challenging Dr. Appelbaum’s evaluation of individual wards’ capacity to vote. Defendants asserted that no standard exists to determine the specific capacity to vote; they argued instead that Missouri’s statutory standard for determining incapacity generally (i.e., lack of capacity to meet essential requirements for food, clothing, shelter, safety or other care) was the appropriate standard. See, e.g., App. 646, 902-03.
38

adjudicated fully incapacitated cannot vote, see, e.g., App. 403 (“If an individual is declared incompetent, . . . he fails to meet Missouri’s qualification for voting: absence of adjudicated full mental incapacity”), and that the statutory standard for competence (i.e., lack of capacity to meet essential requirements for food, clothing, shelter, safety or other care) is “the closest approximation [of competence to vote] that is legally practicable.” Id. at 418.
However, “[i]n a last ditch effort to save the provision[s]” at issue, Rowe, 156 F. Supp.2d at 45, defendants also for the first time claimed that “wards who have the competence to vote will not be subject to the Missouri prohibition on voting by persons adjudged fully incapacitated.” App. 417. Just as in Rowe, 156 F. Supp.2d at 49-50, the district court should have rejected defendants’ eleventh-hour “radical change in interpretation,” which conflicts with the plain text of Missouri’s constitution and statutes. See Ways v. City of Lincoln, 274 F.3d 514, 519 (8th Cir. 2001) (federal court cannot supply limiting construction unless state law is “‘readily susceptible’ to such an interpretation,” because “federal courts ‘lack jurisdiction authoritatively to construe state legislation’”) (citations omitted).22 By its
22 In Rowe, 156 F. Supp.2d at 46 n.15, the court rejected defendants’ changed interpretation of a similar voting ban to assure that individuals
39

plain terms, Missouri law disenfranchises people with disabilities without providing the individualized inquiry into voting competence that the ADA and Rehabilitation Act require. Accordingly, the district court erred in granting summary judgment to the defendants. 3. Even Under the District Court’s Erroneous Reading, Missouri Law
Still Fails to Provide the Individualized Assessment of Voting Competence Federal Law Demands
Even if the district court were correct that Missouri’s scheme permits probate courts to reserve the voting rights of individuals under full guardianship, that scheme still would not provide the individualized assessment of voting competence the ADA and Rehabilitation Act demand. As the district court read Missouri law, an individual who is adjudicated incapacitated—a determination based entirely on the lack of self-care skills—will still be deprived of the right to vote “unless the [probate] court specifies otherwise.” Add. 7. And in seeking to have his voting rights preserved, an individual placed under guardianship must overcome the
would not lose the right to vote without an individualized assessment of voting capacity. The court noted that “a federal court may not slice and dice a state law to ‘save’ it; [the court] must apply the Constitution to the law the state enacted and not attribute to the state a law [the court] could have written to avoid the problem.” Id. (quoting K-S Pharmacies, Inc. v. Am. Home Prods. Corp., 962 F.2d 728, 730 (7th Cir.1992))
40

“presum[ption]” that he is “incompetent.” Id. (quoting Mo. Rev. Stat. § 475.078.3).
Under the district court’s reading, if the respondent in a guardianship proceeding does not know to ask for an order preserving voting rights, he will be disenfranchised even in the absence of any inquiry into his competence to vote. As the record in this case reflects, respondents are rarely, if ever, informed that voting capacity is at stake in guardianship proceedings. See p. 12-13, supra. And even if he does know enough to request it, the respondent’s lack of self-care skills has the legal effect of forcing him to bear the burden of proving his voting competence. Under such a scheme, individuals with disabilities will often be denied the right to vote, not on the basis of evidence of their individual voting competence, but on the basis of “presumptions as to what a class of individuals with disabilities can and cannot do,” 28 C.F.R. Pt. 35, App. A—precisely what the ADA forbids. See p. 28-29, supra.
In short, even the district court’s rewriting of the Missouri guardianship laws cannot save those laws from invalidation under the ADA and Rehabilitation Act. Whether applied according to its plain terms or according to the district court’s inventive reading, Missouri law disenfranchises people based on assumptions about what people with
41

disabilities can do rather than an individualized inquiry into voting competence.
II. MISSOURI’S VOTING BAN VIOLATES THE FOURTEENTH AMENDMENT
Missouri’s voting ban also violates the Equal Protection and Due Process Clauses of the Fourteenth Amendment. The ban completely and indefinitely disenfranchises all those who are subject to it. It accordingly imposes the kind of severe restriction on the right to vote that triggers strict scrutiny. Given the alternative of requiring an individualized determination of voting competence, the voting ban cannot survive that scrutiny. This is true regardless of whether one reads the voting ban according to the plain terms of Missouri law or instead adopts the district court’s unduly generous construction of that law.
A. Missouri’s Voting Ban Imposes Severe Restrictions on the Right to Vote and Therefore Triggers Strict Scrutiny
The right to vote is a fundamental right. See Reynolds v. Sims, 377 U.S. 533, 562 (1964). As the Reynolds Court explained:
No right is more precious in a free country than that of having a voice in the election of those who make the laws under which, as good citizens, we must live. Other rights, even the most basic, are illusory if the right to vote is undermined. Our Constitution leaves no room for classification of people in a way that unnecessarily abridges this right.
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Id. at 560 (internal quotation marks omitted). For MOPAS’s constituents, many of whom depend on state Medicaid and other benefits, voting is a right on which their life and health turns to a far greater extent than for most people. As the record reflects, a number of those constituents have participated in lobbying efforts to explain to their representatives in the state legislature the impact that recently adopted Medicaid cuts would have on their lives—efforts that would be more effective if they could vote for the legislators who have power over state Medicaid budgets. App. 811, 817, 825. The right to vote therefore takes on particular urgency for these individuals.
Under the Equal Protection Clause, classifications that might interfere with the right to vote must be “closely scrutinized and carefully confined.” Harper v. Virginia State Bd. of Elections, 383 U.S. 663, 670 (1966). When a state subjects individuals’ voting rights to “severe” restrictions rather than “reasonable, nondiscriminatory” ones, the state must prove that its election laws are “narrowly drawn to advance a state interest of compelling importance.” Burdick v. Takushi, 504 U.S. 428, 434 (1992). See also Dunn v. Blumstein, 405 U.S. 330, 337 (1972) (where the state grants the right to vote to some citizens and denies the franchise to others, the exclusions must be narrowly tailored to promote a compelling state interest); cf. Bush v.
43

Gore, 531 U.S. 98, 104-105 (2000) (once state grants the franchise, it may not draw arbitrary lines).
The Missouri voting ban is a paradigm case of a “severe” restriction on the right to vote. Indeed, it is even more severe than the durational residency requirement that triggered strict scrutiny in Dunn, 405 U.S. at 342343. That restriction effected only a temporary disenfranchisement, while Missouri’s voting ban entirely and indefinitely disenfranchises individuals under guardianship who are subject to it. It is decisively unlike the “reasonable, nondiscriminatory restrictions” that merely regulate how voters express their views at the polls and that therefore trigger less stringent review. See Burdick, 504 U.S. at 434 (ban on write-in voting not subject to strict scrutiny); Timmons v. Twin Cities Area New Party, 520 U.S. 351, 359 (1997) (“anti-fusion” law that banned candidates from appearing on more than one party’s line on general election ballot not subject to strict scrutiny). Under Burdick and Dunn, therefore, Missouri’s voting ban must be narrowly tailored to a compelling state interest. B. Read According to its Plain Terms, Missouri’s Voting Ban Violates the
Equal Protection and Due Process Clauses As plaintiffs have shown, Missouri law categorically prohibits voting by people under guardianship—and guardianship determinations are made based on an evaluation of self-care skills, without consideration of the
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ward’s competence to vote. That categorical ban fails the strict scrutiny to which such severe voting restrictions are subjected.
Defendants assert that the ban serves the interest in assuring that participants in elections be able to understand the electoral choices they make. App. 408. As the Supreme Court has noted, “the criterion of ‘intelligent’ voting is an elusive one, and susceptible of abuse.” Dunn, 405 U.S. at 356. Even if “intelligent” voting is a compelling state interest, however, Missouri’s voting ban is not narrowly tailored to that interest, because it is both over- and under-inclusive. Banning all individuals under full guardianship from voting, regardless of their capacity to vote, is overinclusive because it has the result of disenfranchising many individuals (including plaintiff Scaletty and many of plaintiff MOPAS’s constituents) who have the capacity to understand the electoral choices they make. See p. 6-12, supra. The voting ban relies not on a specific determination about an individual’s competence to vote, but instead presumes that individuals lack the competence to vote based on factors that are entirely distinct from the ability to vote. See p. 31-32, supra. The ban is also under-inclusive and arbitrary, as many individuals who are not under full guardianship—and thus retain their right to vote—have similar cognitive impairments to people who are under full guardianship. App. 740, 751.
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As with the durational residence requirement invalidated in Dunn—a requirement also justified as assuring intelligent exercise of the right to vote—the “conclusive presumptions” of the Missouri voting ban “are much too crude. They represent a requirement of knowledge unfairly imposed on only some citizens.” Dunn, 405 U.S. at 360. If the state were truly interested in assuring that only people with the capacity to vote have the franchise, it could achieve that interest by requiring a specific determination (after notice and an opportunity to be heard) that a given individual specifically lacks that capacity. See n. 17, supra (noting that a number of states do just that). By failing to take that more narrowly tailored course, Missouri has failed to employ “the exacting standard of precision” strict scrutiny demands. Dunn, 405 U.S. at 360. Accordingly, its voting ban violates both the Equal Protection Clause, see id., and the Due Process Clause, see Reno v. Flores, 507 U.S. 292, 302 (1993) (substantive component of the Due Process Clause “forbids the government to infringe certain ‘fundamental’ liberty interests at all, no matter what process is provided, unless the infringement is narrowly tailored to serve a compelling state interest”) (emphasis in original).
Indeed, the Supreme Court itself has made clear that it considers a voting ban like Missouri’s to be unconstitutional. In Tennessee v. Lane, 541
46

U.S. 509 (2004), the Court examined the history of constitutional violations to which Title II of the ADA responds. Detailing “pervasive unequal treatment in the administration of state services and programs, including systematic deprivations of fundamental rights,” id. at 524, the Court specifically cited the decision in Rowe, supra, as documenting part of “a pattern of unequal treatment in,” inter alia, “voting.” Lane, 541 U.S. at 525 & n.13. Rowe invalidated a voting ban that (like Missouri’s) disenfranchised individuals based on guardianship status without regard to whether they had the capacity to vote. The court held that the ban violated the Equal Protection Clause because it was not narrowly tailored to achieve the goal of ensuring the integrity of elections. Rowe, 156 F. Supp.2d at 51-56. The court observed that “there is little to no correlation between the State’s interest and the disenfranchisement of Jill Doe and June Doe, two women who suffer from mental illness but, according to their physicians, understand the nature and effect of the act of voting.” Id. at 52. The state had “disenfranchised a subset of mentally ill citizens based on a stereotype rather than any actual relevant incapacity.” Id. The same conclusion should follow here.
The ABA’s Commission on the Mentally Disabled has also concluded that voting bans such as Missouri’s are not narrowly tailored. People may
47

have motivations for seeking a guardianship that “have little or no bearing
on factors relevant to the state’s interest in an intelligent electorate,” and
“persons who remain under the watchful eye of their families or friends but
who do not have a formal guardian will be allowed to vote, even if they are
less capable than those with a guardian.” Sales et al., supra, at 106; accord
App. 740. According to the ABA Commission, in “the context of the voting
rights of mentally disabled persons the facts and circumstances behind the
law are, for the most part, archaic stereotypes, and the state’s interest is
meager when compared to the real impact that voting restrictions have on
the unquestionably fundamental right to participate in the political process.” Id. at 107.23 The same points apply to Missouri’s voting ban. The district
23 See also SAMUEL JAN BRAKEL ET AL., THE MENTALLY DISABLED AND THE LAW 446 (3d ed. 1985) (laws that restrict voting by individuals adjudicated incompetent or placed under guardianship may be over-inclusive, since the incapacity at issue in those adjudications may have little to do with the capacity to vote); Note, Mental Disability and the Right to Vote, 88 YALE L. J. 1644, 1647-60 (1979) (arguing that state laws barring individuals under guardianship from voting violate equal protection because they are both over-inclusive and under-inclusive as a means to ensure that voters can make rational voting choices, and noting that the presumption that incapacity in one area suggests incapacity in all areas has been widely rejected); accord Kay Schriner et al., The Last Suffrage Movement: Voting Rights for Persons with Cognitive and Emotional Disabilities, 27 PUBLIUS 3 (1997) (describing poor “fit” between laws disenfranchising individuals based on competence determinations and states’ interests in ensuring election integrity).
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court therefore erred in holding that the Missouri voting ban complied with the Fourteenth Amendment.
C. Even on the District Court’s Reading, the Voting Ban Violates the Equal Protection and Due Process Clauses
The district court rejected plaintiffs’ constitutional challenge only because it read Missouri law as permitting an individualized inquiry into voting competence. Add. 12. As plaintiffs have shown, see p. 32-39, supra, Missouri’s voting ban permits no such individualized assessment. But even if the district court’s interpretation of state law were correct, the law still would disenfranchise individuals under guardianship without any inquiry into voting competence in many cases. As the record indicates, numerous Missouri residents—including plaintiff Scaletty and the constituents of plaintiff MOPAS—have lost their right to vote, without any determination of voting competence, upon being placed under full guardianship. See p. 6-13, supra. Even in cases where an inquiry into voting competence was performed, the district court’s reading would require individuals under guardianship to overcome a presumption of incompetence. See p. 40-41, supra. A narrowly tailored regime would require a showing that an individual in fact lacked voting competence before disenfranchising him. Other states adopt such a requirement. See n.17, supra. But even under the
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district court’s interpretation Missouri law would not impose such a requirement.
Under the district court’s reading, the Missouri scheme would also deny due process to individuals placed under guardianship. Nothing in Missouri law—whether in the statutory provisions cited by the district court or elsewhere—requires that individuals be given notice that their right to vote may be lost upon being placed under guardianship and that they have a right to present evidence concerning their capacity to vote. And indeed, the record demonstrates that many individuals who are haled into guardianship proceedings are unaware that they stand to lose their right to vote, and many prospective guardians are unaware that an individual stands to lose his or her right to vote. See p. 12-13, supra. Defendants do not provide any information to probate courts, public administrators, or private guardians or wards concerning the voting rights of individuals under guardianship, much less require that such individuals be informed and given an opportunity to challenge the presumptive loss of their voting rights. See id. The failure to provide such notice violates an individual’s right to procedural due process under the well settled principles of Mathews v. Eldridge, 424 U.S. 319, 333 (1976) (“The fundamental requirement of due process is the opportunity to be heard at a meaningful time and in a meaningful manner.”) (internal
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quotation marks omitted), and Mullane v. Central Hanover Bank & Trust Co., 339 U.S. 306, 313 (1950) (due process requires notice and an opportunity to be heard). See Rowe, 156 F. Supp.2d at 48-49 (lack of notice that voting was at stake in guardianship proceedings denied due process).
CONCLUSION The judgment of the district court should be reversed and the case remanded for entry of summary judgment for the plaintiffs. Respectfully submitted,

________________________
James M. Kirkland #50794 Sonnenschein, Nath & Rosenthal LLP 4520 Main Street, Suite 1100 Kansas City, MO 64111 (816) 460-2400
Anthony E. Rothert American Civil Liberties Union of Eastern Missouri 4557 Laclede Avenue St. Louis, MO 63108 (314) 361-3635
Neil Bradley ACLU National Voting Rights Project 2600 Marquis One Tower 245 Peachtree Center Ave Atlanta, GA 30303 (404) 523-2721

Samuel R. Bagenstos One Brookings Dr., Box 1120 St. Louis, MO 63130 (314) 935-9097
Ira A. Burnim Jennifer Mathis Alison N. Barkoff Judge David L. Bazelon Center
for Mental Health Law 1101 15th St., NW, Suite 1212 Washington, DC 20005 (202) 467-5730
Michael H. Finkelstein David Hale Missouri Protection and Advocacy Services 925 South County Club Drive Jefferson City, MO 65109 (573) 893-3333

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CERTIFICATE OF COMPLIANCE Pursuant to Federal Rule of Appellate Procedure 32(a)(7)(C), Appellants, by their undersigned counsel, hereby certify that the Brief of Appellant complies with the type-volume limitation of FRAP 32(a)(7)(B) in that it contains 11,856 words. Pursuant to Eighth Circuit Rule 28A(c), Appellants state that the brief was prepared with Microsoft Office Word 2003.
________________________ James M. Kirkland

CERTIFICATE OF FILING AND SERVICE
I hereby certify that a copy of Appellants’ Brief was filed on September 28,
2006 by Federal Express addressed to the Clerk and was served by depositing the
same in the United States Mail, postage prepaid, on September 28, 2006, addressed
to the following counsel:
Michael Pritchett MISSOURI ATTORNEY GENERAL’S OFFICE Broadway State Office Building P.O. Box 899 Jefferson City, MO 65102
Wan J. Kim David K. Flynn Sarah E. Harrington Department of Justice Civil Rights Division, Appellate Section Ben Franklin Station P.O. Box 14403 Washington, D.C. 20044-4403
Charles M. Thomas Assistant United States Attorney Office of the United States Attorney United States Courthouse 400 E. 9th Street, Room 5510 Kansas City, MO 64106
________________________ James M. Kirkland

 
 Case No. 06-3014
UNITED STATES COURT OF APPEALS FOR THE EIGHTH CIRCUIT

MISSOURI PROTECTION AND ADVOCACY SERVICES, INC., and BOB SCALETTY,

Plaintiffs-Appellants,

v.

ROBIN CARNAHAN, in her official capacity as Secretary of State of the State of Missouri, and JEREMIAH NIXON, in his official capacity as Attorney General of the State of Missouri,

Defendants-Appellees. _____________________________________________________________

APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE WESTERN DISTRICT OF MISSOURI THE HONORABLE ORTRIE D. SMITH
_____________________________________________________________

REPLY BRIEF OF THE PLAINTIFFS-APPELLANTS _____________________________________________________________

James M. Kirkland

Samuel R. Bagenstos

Sonnenschein, Nath & Rosenthal LLP

One Brookings Dr., Box 1120

4520 Main Street, Suite 1100

St. Louis, MO 63130

Kansas City, MO 64111

Ira A. Burnim

Anthony E. Rothert

Jennifer Mathis

American Civil Liberties Union

Alison N. Barkoff

of Eastern Missouri

Judge David L. Bazelon Center

4557 Laclede Avenue St. Louis, MO 63108

for Mental Health Law 1101 15th St., NW, Suite 1212

Washington, DC 20005

(additional counsel on signature page)

ATTORNEYS FOR PLAINTIFFS-APPELLANTS

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TABLE OF CONTENTS
TABLE OF AUTHORITIES .......................................................................... ii
I. MISSOURI’S VOTING BAN VIOLATES THE ADA AND THE REHABILITATION ACT.................................................................... 2 A. The ADA and the Rehabilitation Act Unambiguously Apply to State Actions that Exclude Individuals with Disabilities from Participating in the Voting Process................ 3 B. The “Absence of Adjudicated Full Mental Incapacity” is not an “Essential Eligibility Requirement” for Voting .................... 8 1. Missouri’s Voting Ban Does Not Permit an Individualized Determination of Competence to Vote.................................................................................. 9 2. Limitations on Self-Care Skills Do Not Imply Incompetence to Vote .................................................... 11
II. MISSOURI’S VOTING BAN VIOLATES THE FOURTEENTH AMENDMENT .................................................................................. 17 A. Under Burdick, the Voting Ban is a “Severe” Restriction That Must Satisfy Strict Scrutiny............................................. 17 B. The Voting Ban is Not “Narrowly Drawn to Advance a State Interest of Compelling Importance” ........................................ 18 1. The Voting Ban is Not Narrowly Tailored to Any State Interest in Assuring “Rational” or “Understanding” Voting ............................................................................ 18 2. The State’s Asserted Interests in Avoiding “Double Voting” and Preserving the Public’s Perception of the Electoral Process Rest on Mere Speculation ........... 21
III. APPELLEES’ PROCEDURAL ARGUMENTS ARE MERITLESS ...................................................................................... 23 A. Missouri’s Secretary of State and Attorney General Are Proper Defendants .................................................................... 23 B. Plaintiff Scaletty’s Claims Are Not Moot ..................................... 26 C. Plaintiff MOPAS Has Associational Standing .............................. 28

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TABLE OF AUTHORITIES FEDERAL CASES
Adarand Constructors, Inc. v. Slater, 528 U.S. 216 (2000) ......................... 28 Arkansas Medical Soc., Inc. v. Reynolds, 6 F.3d 519 (8th Cir. 1993).......... 28 Association of Community Orgs. for Reform Now v. Edgar, 56 F.3d
791 (7th Cir. 1995) .................................................................................... 7 Burdick v. Takushi, 504 U.S. 428 (1992) ............................................... 17, 18 Children's Healthcare is a Legal Duty, Inc. v. Deters, 92 F.3d 1412
(6th Cir. 1996), cert. denied, 519 U.S. 1149 (1997), is........................... 26 City of Cleburne v. Cleburne Living Center, 473 U.S. 432 (1985).............. 23 Daubert v. Merrell Dow Pharmaceuticals, Inc.,
509 U.S. 579 (1993)..................................................................... 14, 15, 16 Doe v. Rowe, 156 F. Supp. 2d 35 (D. Me. 2001).......................................... 16 Dunn v. Blumstein, 405 U.S. 330 (1972), 356, 360................................ 17, 19 Ex parte Young, 209 U.S. 123 (1908)........................................................... 24 Friends of the Earth, Inc. v. Laidlaw Environmental Services (TOC),
Inc., 528 U.S. 167 (2000) .................................................................. 26, 27 Gorman v. Bartch, 152 F.3d 907 (8th Cir. 1998) ....................................... 5, 6 Gregory v. Ashcroft, 501 U.S. 452 (1991).................................................. 3, 4 Hunt v. Washington Apple Advertising Comm’n, 432 U.S. 333 (1977)....... 28 Innovative Health Systems, Inc. v. City of White Plains, 117 F.3d 37
(2d Cir. 1997), overruled in part on other grounds .................................. 6 Jim C. v. United States, 235 F.3d 1079 (8th Cir. 2000) ................................. 3

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Kumho Tire Co., Ltd. v. Carmichael, 526 U.S. at 137 (1999)....................................................................... 14, 16
Leatherman v. Tarrant County Narcotics Intelligence and Coordination Unit, 507 U.S. 163 (1993)................................................. 29
Lightbourn v. County of El Paso, 118 F.3d 421 (5th Cir. 1997), cert. denied, 522 U.S. 1052 (1998) ........................................................... 6
Lujan v. Defenders of Wildlife, 504 U.S. 555 (1992) ................................... 30
Manhattan State Citizens Group, Inc. v. Bass, 524 F. Supp. 1270 (S.D.N.Y. 1981).................................................................................. 18-19
McCarthy v. Ozark Sch. District, 359 F.3d 1029 (8th Cir. 2004) ................ 27
Okpalobi v. Foster, 244 F.3d 405 (5th Cir. 2001) ........................................ 25
Pennsylvania Department of Corrections v. Yeskey, 524 U.S. 206 (1998)........................................................................... 4, 5, 6
Reproductive Health Services of Planned Parenthood of the St. Louis Region, Inc. v. Nixon, 428 F.3d 1139 (8th Cir. 2005) ............................. 25
Robinson v. GEICO General Insurance Co., 447 F.3d 1096 (8th Cir. 2006) ................................................................. 15
School Bd. v. Arline, 480 U.S. 273 (1987) ..................................................... 8
Shaw v. Hunt, 517 U.S. 899 (1996) .............................................................. 22
Swierkiewicz v. Sorema N.A., 534 U.S. 506 (2002) ..................................... 29
Tenbarge v. Ames Taping Tool Systems, Inc., 128 F.3d 656 (8th Cir. 1997) ................................................................... 14
Tennessee v. Lane, 541 U.S. 509 (2004) ........................................................ 4
Thompson v. Western States Medical Center, 535 U.S. 357 (2002) ............ 22

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United States v. Pfeifer, 371 F.3d 430 (8th Cir. 2004) ................................. 20 Verizon Maryland, Inc. v. Public Service Comm’n, 535 U.S. 635
(2002)....................................................................................................... 24 Wagner v. Hesston Corp., 450 F.3d 756 (8th Cir. 2006) ............................. 14 Zervos v. Verizon New York, Inc., 252 F.3d 163 (2d Cir. 2001) .................... 6
STATE CASES Standard Operations, Inc. v. Montague,
758 S.W.2d 442 (Mo. 1988) .................................................. 10, 12, 13, 15 FEDERAL STATUTES
42 U.S.C. § 12101(a)(3).................................................................................. 6 42 U.S.C. § 12131(1)(B)................................................................................. 4 42 U.S.C. § 12132................................................................................... 2, 4, 5 42 U.S.C. § 1971(b) ...................................................................................... 22 42 U.S.C. § 1973gg-6(a)(3)(B)....................................................................... 7 42 U.S.C. § 1973gg-9(d)(1) ............................................................................ 7 42 U.S.C. § 1973gg(b) .................................................................................... 7 42 U.S.C. § 1983............................................................................................. 6 28 U.S.C. § 1865(b)(4) ................................................................................. 20 18 U.S.C. § 922(g)(4) ............................................................................. 20, 21 Fed. R. Civ. P. 56(c) ..................................................................................... 13 Fed. R. Civ. P. 56(e) ..................................................................................... 30

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Fed. R. Evid. 702 .......................................................................................... 15 STATE STATUTES
Mo. Const. Art. 8, § 2 ..................................................................................... 9 Mo. Rev. Stat. § 27.060 ................................................................................ 25 Mo. Rev. Stat. §§ 28.035 ........................................................................ 24, 27 Mo. Rev. Stat. §§ 115.136 ...................................................................... 24, 27 Mo. Rev. Stat. § 115.133 ................................................................................ 9 Mo. Rev. Stat. § 115.195.3 ........................................................................... 25 Mo. Rev. Stat. § 475.010(9)............................................................ 1, 8, 10, 20 Mo. Rev. Stat. § 494.425 .............................................................................. 20
PUBLICATIONS Jason H. Karlawish, Richard J. Bonnie, Paul S. Appelbaum, et al.,
Addressing the Ethical, Legal and Social Issues Raised by Voting by Persons with Dementia, 292 JAMA 1345 (2004) ......................... 15-16 Paul S. Appelbaum et al., The Capacity to Vote of Persons with Alzheimer's Disease, 162 Am. J. Psychiatry 2094 (2005)....................... 15

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This case involves Missouri’s disenfranchisement of individuals with mental disabilities who lack the ability to care for themselves but who nonetheless understand the nature and effect of voting. Both Plaintiff Scaletty and numerous constituents of Plaintiff MOPAS follow politics, read the newspaper or listen to television and radio news daily, and are particularly concerned about Missouri’s recent cuts in Medicaid. See Opening Br. 7-8, 10-11 & n.7. Dr. Paul Appelbaum—the former President of the American Psychiatric Association and the nation’s leading expert on mental competency determinations—determined that each of these individuals is competent to vote. App. 699-712. Yet because they have been placed under guardianship—based on a determination that they “lack[ed] capacity to meet essential requirements for food, clothing, shelter, safety, or other care,” Mo. Rev. Stat. § 475.010(9)—Missouri law categorically disenfranchises them, without any individualized examination of their voting competence. See Opening Br. 5-14, 31-33.
In our opening brief (at 21-51), we demonstrated that such a categorical ban violates the Americans with Disabilities Act (ADA), the Rehabilitation Act, and the Fourteenth Amendment. Although a state may deny the franchise to individuals deemed mentally incapacitated, federal law requires that it make an individualized determination that a person lacks the

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competence to vote—not to make other decisions—before it does so. We also showed (at 31-37) that the district court was wrong to conclude that Missouri law permits an individualized examination of voting competence in proceedings for full guardianship. In their brief, Appellees do not defend the theory on which they prevailed below. Instead, they make a series of arguments the district court properly rejected. Those arguments provide no basis for affirming the district court’s judgment.
I. MISSOURI’S VOTING BAN VIOLATES THE ADA AND THE REHABILITATION ACT
In our opening brief, we showed (at 24-25) that Plaintiff Scaletty and the constituents of Plaintiff MOPAS are “individuals with disabilities” under the ADA and the Rehabilitation Act. We also showed (at 26-27) that Missouri’s voting ban excludes those individuals from participation in voting “by reason of their disabilities.” And we showed (at 27-31) that the ADA and the Rehabilitation Act require states to make an individualized inquiry into whether an individual with a disability is “qualified”—i.e., meets, “with or without reasonable modification,” the “essential” eligibility requirements for participation, 42 U.S.C. § 12132—before excluding that individual based on disability from “services, programs, or activities,” id.
Appellees make no effort to contest any of these points. Instead, they make two arguments. First, they contend (at 33-37) that the ADA and the

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Rehabilitation Act do not even apply to state decisions to exclude individuals with disabilities from voting. Second, they contend (at 37-40) that “the absence of adjudicated full mental incapacity” is an essential eligibility requirement for voting, and that guardianship proceedings provide a sufficiently individualized inquiry into that requirement. Those arguments lack merit. A. The ADA and the Rehabilitation Act Unambiguously Apply to State Actions that Exclude Individuals with Disabilities from Participating in
the Voting Process
Invoking the principle that “if Congress intends to alter the usual constitutional balance between the States and the Federal Government, it must make its intention to do so unmistakably clear in the language of the statute,” Gregory v. Ashcroft, 501 U.S. 452, 460 (1991) (internal quotation marks omitted), Appellees argue (at 33-37) that neither the ADA nor the Rehabilitation Act “demonstrate[s] clear congressional intent to federalize the states’ voter qualification requirements.”1 That argument is inconsistent

1 Appellees have now abandoned their argument, made in the district court, that Congress lacked power to apply the ADA and Rehabilitation Act to voting. For reasons we explained in the district court, App. 534-540, that argument was meritless in any event. The Rehabilitation Act validly conditions states’ receipt of federal funds on compliance with its requirements. See Jim C. v. United States, 235 F.3d 1079, 1081-1082 (8th Cir. 2000) (en banc). And Title II validly enforces the Fourteenth

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with the statutory text, as well as with precedent from this Court and the Supreme Court. The district court properly rejected it. Opening Br. Add. 8.
The Gregory “plain-statement rule” applies only where the statutory text is ambiguous. But, as the Supreme Court held in Pennsylvania Department of Corrections v. Yeskey, 524 U.S. 206, 209-212 (1998), there is no ambiguity in the ADA’s text. Title II of the statute provides that “no qualified individual with a disability shall, by reason of such disability, be excluded from participation in or be denied the benefits of the services, programs, or activities of a public entity, or be subjected to discrimination by any such entity.” 42 U.S.C. § 12132.2 The state entities that administer elections, like the state prisons that were the subject of Yeskey, “fall squarely within the statutory definition of ‘public entity,’ which includes ‘any department, agency, special purpose district, or other instrumentality of a State or States or local government.’” Yeskey, 524 U.S. at 210 (quoting 42 U.S.C. § 12131(1)(B)). And the Missouri voting ban plainly “subject[s]”

Amendment insofar as it applies to cases implicating the fundamental right to vote, in the same way it is valid insofar “as it applies to the class of cases implicating the fundamental right of access to courts.” Tennessee v. Lane, 541 U.S. 509, 533-534 (2004).
2 As we noted in our opening brief, at 23, the Rehabilitation Act uses essentially the same language, and has been interpreted to be consistent with the ADA.

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people with disabilities “to discrimination” and “exclude[s]” them “from participation in” elections, which are state “activities” under the plain meaning of the term. 42 U.S.C. § 12132; see Black’s Law Dictionary (8th ed. 2004) (defining “activity” as “[t]he collective acts of one person or of two or more people engaged in a common enterprise”).3
Appellees suggest (at 34) that the ADA cannot be applied to voting unless Congress specifically enumerated “elections” as among the activities the statute covers. But as the Supreme Court explained in Yeskey, Congress’s decision to eschew such enumeration and instead use the general “services, programs, or activities” language “does not demonstrate ambiguity. It demonstrates breadth.” Yeskey, 524 U.S. at 212 (internal quotation marks omitted). This Court reaffirmed that principle in Gorman v. Bartch, 152 F.3d 907, 912 (8th Cir. 1998). As Gorman emphasized, the ADA’s coverage “must be interpreted broadly to include the ordinary operations of a public entity in order to carry out the purpose of prohibiting

3 Appellees attempt (at 36) to distinguish Yeskey on the ground that “unlike the operation of a prison, which is very directly a state ‘program,’ which provides ‘benefits’ and ‘services,’ the regulation of voting qualifications is not a state program, benefit, or service.” But the statute covers more than just “programs, benefits, or services”; it also covers “exclu[sion] from participation in . . . activities,” 42 U.S.C. § 12132—language that plainly reaches the Missouri voting ban.

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discrimination.” Id. at 913. In support of that conclusion, this Court cited Innovative Health Systems, Inc. v. City of White Plains, 117 F.3d 37, 44-45 (2d Cir. 1997), overruled in part on other grounds, Zervos v. Verizon New York, Inc., 252 F.3d 163 (2d Cir. 2001), which held that the ADA “prohibits all discrimination by a public entity, regardless of the context.” See Gorman, 152 F.3d at 913.
Indeed, unlike in the prison context of Yeskey, 524 U.S. at 211-212, or the law enforcement context of Gorman, Congress made clear in the text of the ADA that it was concerned with discrimination in the voting context. See 42 U.S.C. § 12101(a)(3) (finding that “discrimination against individuals with disabilities persists in such critical areas as . . . voting”). If the ADA applies to those areas of state government, it applies a fortiori to voting.4

4 As the district court recognized (Opening Br. Add. 8), the pre-Yeskey decision in Lightbourn v. County of El Paso, 118 F.3d 421 (5th Cir. 1997), cert. denied, 522 U.S. 1052 (1998), is not to the contrary. Lightbourn held that, for purposes of the Texas Election Code, the ADA is not an “election law,” because it does not specifically refer to elections. Id. at 429-430. But the Fifth Circuit did not deny that the ADA applies to elections. To the contrary, it expressly declared that “the ADA involves every area of law,” and it specifically analogized the statute in this regard to 42 U.S.C. § 1983, a general civil rights law that plainly applies to voting. Lightbourn, 118 F.3d at 430.

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Contrary to Appellees’ argument (at 35), the National Voter Registration Act of 1993 (NVRA) casts no doubt on this conclusion. That statute provides procedures by which states may, inter alia, remove individuals from voting rolls “as provided by State law, by reason of criminal conviction or mental incapacity.” 42 U.S.C. § 1973gg-6(a)(3)(B). But it does not purport to authorize states to adopt whatever standard of “mental incapacity” they choose. To the contrary, the NVRA addresses only the procedures governing voter registration, not the substance of voter qualifications. See 42 U.S.C. § 1973gg(b); Association of Community Orgs. for Reform Now v. Edgar, 56 F.3d 791, 794 (7th Cir. 1995). And the statute makes clear that its rights and remedies “are in addition to all other rights and remedies provided by law.” 42 U.S.C. § 1973gg-9(d)(1). As we explained in our opening brief (at 27-40), the ADA does not prohibit states from adopting a mental incapacity rule that denies the franchise to individuals who have been shown to be incompetent to vote; the ADA does, by contrast, prohibit categorical rules like Missouri’s that disenfranchise people under guardianship without an individualized inquiry into voting competence. Nothing in the NVRA purports to permit states to adopt such a rule of categorical disenfranchisement.

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B. The “Absence of Adjudicated Full Mental Incapacity” is not an “Essential Eligibility Requirement” for Voting
Appellees assert (at 39-40) that “the absence of adjudicated full mental incapacity” is an “essential eligibility requirement” for voting in Missouri. But as we showed in our opening brief (at 27-31), the ADA does not permit a state simply to define “essential eligibility requirements” by fiat. Rather, the statute requires an independent inquiry into whether the asserted requirement is truly “essential,” and it requires an “individualized inquiry,” School Bd. v. Arline, 480 U.S. 273, 287 (1987), into whether the particular individual with a disability satisfies the essential requirements. Even if the competence to vote is an essential eligibility requirement for participating in elections, we showed in our opening brief (at 30-33) that the competence “to meet essential requirements for food, clothing, shelter, safety, or other care,” Mo. Rev. Stat. § 475.010(9)—the Missouri standard for guardianship—is not. Appellees now respond (at 62-64) that the Missouri guardianship procedure does provide an individualized determination of voting competence, and (at 40) that even if it does not, selfcare skills are a good proxy for voting competence. Neither of these arguments is availing.

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1. Missouri’s Voting Ban Does Not Permit an Individualized Determination of Competence to Vote
In granting summary judgment to Appellees, the district court determined that Missouri law permits probate courts to preserve the voting rights of individuals placed under full guardianship; as such, the court concluded, Missouri law provides for an individualized inquiry into voting competence. Opening Br. Add. 9-10. As we showed in our opening brief (at 31-40), the district court’s reading of Missouri law conflicted with the plain text of the relevant state constitutional and statutory provisions. Those provisions state, in clear and unqualified terms, that “[n]o person who has a guardian of his or her estate or person by reason of mental incapacity . . . shall be entitled to vote,” Mo. Const. Art. 8, § 2, and that “[n]o person who is adjudged incapacitated shall be entitled to register or vote,” Mo. Rev. Stat. § 115.133. Once an individual is adjudicated “incapacitated,” Missouri law flatly prohibits him from voting.
Appellees make no effort to defend the theory on which the district court ruled for them. Instead, they contend (somewhat half-heartedly) that if “voting capacity may be directly assessed” (a point they vigorously deny), that capacity will be considered as one of the self-care skills that are assessed in determining whether an individual is eligible for guardianship. App’e Br. 62. Even if an individual’s “only capacity i[s] the capacity to

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vote,” Appellees contend, a probate court can make a finding only of partial
incapacity, and place that individual only under partial guardianship that
preserves the right to vote (id.):
A person who can establish the capacity to vote, and only that capacity, has established that he or she maintains the ability to meet, in part, the essential requirements for ‘other care,’ because voting is one means, albeit indirect, to meet a person’s need for care. After all, the purpose of voting is generally to establish a government that meets what the voter believes to be the needs of the populace, including the needs of the voter him or herself.
That argument is absurd. Appellees cite no authority for the assertion that
Missouri law treats voting as an “essential requirement[] for food, clothing,
shelter, safety, or other care.” Mo. Rev. Stat. § 475.010(9). Nor do they cite
any dictionary definition that, contrary to the ordinary meaning of the term,
treats voting as any kind of “care.” Applying the principle of ejusdem
generis, see Standard Operations, Inc. v. Montague, 758 S.W.2d 442, 444-
445 (Mo. 1988) (applying that principle), “other care” in Section 475.010(9)
must refer to care that meets one’s basic human needs (like those for food,
clothing, shelter, and safety). Efforts to participate in a process that aims
eventually to make good policy for “the populace” do not fit that definition.
It is understandable that Appellees seek to interpret their guardianship
statutes as authorizing an individualized inquiry into voting competence, for
an individualized inquiry is what the ADA and the Rehabilitation Act

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require. But as we showed in our opening brief (at 39-40), federal courts
have no power to save a state statute by adopting a construction that is in
conflict with the statute’s plain text. Because Missouri law, by its plain
terms, disenfranchises all persons under full guardianship without an
individualized inquiry into voting competence, that law violates the ADA
and the Rehabilitation Act.
2. Limitations on Self-Care Skills Do Not Imply Incompetence to Vote Appellees contend (at 40) that an “inability to make appropriate
choices” regarding “food, clothing, medical care, housing, safety, and
property” necessarily implies that one is incompetent to vote, because voting
is “a process whose very foundation is citizens’ ability to make important
and purposeful choices on candidates and issues that impact the lives of all
Missouri citizens.” But the record belies any suggestion that there is any
connection between limitations on self-care skills and incompetence to vote.
As Dr. Appelbaum explained (App. 704):
[P]ersons [who meet the Missouri standard for “incapacity”] often lack the ability to manage money, such that their well-being is endangered by the actual or threatened lack of resources to pay for the necessities of life. Money management, however, requires skills involving arithmetical abilities and future planning that are quite distinct from the abilities required to vote. Another common reason for the imposition of guardianship is an inability or unwillingness to attend to medical needs, perhaps because of pathologic denial of illness, delusions about the nature and consequence of medications, or odd beliefs about personal health practices. None of these

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impairments, however, relate to competence to vote, which may be retained despite difficulties with medical decisions that may be lifethreatening. Dr. Appelbaum illustrated this point by describing the cases of Plaintiff Scaletty and four other constituents of Plaintiff MOPAS. App. 705-712. Each of these individuals had been placed under guardianship because of limitations in their ability to care for themselves, yet each continued to follow politics, read and listen to the news, and understand the nature and effect of voting. Id. Appellees assert (at 57 n.6) that Dr. Appelbaum applied a test of voting competency that “[t]he majority of children age 5 would be able to pass.” Appellees can point to no evidence in support of that assertion, and Dr. Appelbaum’s own discussion of the individuals he evaluated belies Appellees’ suggestion (id.) that he looked only to “understand[ing] the elementary mechanical aspects of voting.” See App. 705-706 (C.S. is a “regular listener to radio news and watcher of TV news,” he “follows current events and has strong opinions about the performance of the governor and the president on issues of concern to him (e.g., Medicaid, the war in Iraq),” and “two years ago he went to Jefferson City to lobby his state representative and senator against cuts in Medicaid”); id. at 707 (D.C. “reads the Columbia Daily Tribune and the Fayette newspaper at the library 5 days

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per week, and watches the NBC Nightly News and listens to radio news every day,” he “participates in a weekly current events group at his day program,” he has lobbied his legislators about Medicaid cuts, and he has been elected to office in the self-advocacy organization People First); id. at 708-709 (similar information about Plaintiff Scaletty); id. at 710 (similar information about T.P.); id. at 711 (similar information about C.W.).
Dr. Appelbaum’s testimony at the very least creates a “genuine issue” of “material fact,” Fed. R. Civ. P. 56(c), that should have defeated Appellees’ motion for summary judgment. Indeed, based on that testimony, the district court should have granted summary judgment to Appellants. Appellees offered no meaningful rebuttal to Dr. Appelbaum’s conclusion that limitations on self-care skills do not imply incompetence to vote. Appellees’ expert, Dr. Bruce Harry, said that the ability to make decisions regarding self-care involves “reasoning analogues to what one would do to participate in the voting process,” App. 883 (Dep. p. 37); see Appellees’ Br. 58, but he also denied that self care abilities were “a better measure of a person’s capacity to vote than understanding how the voting process works,” App. 883 (Dep. p. 40). As Dr. Appelbaum testified (App. 703), and we described in our opening brief (at 32-33), many states require a specific determination of incompetence to vote before disenfranchising individuals

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placed under guardianship. Dr. Harry acknowledged that those schemes are “reasonable.” App. 883 (Dep p. 40). Taken as a whole, Dr. Harry’s testimony simply did not contradict Dr. Appelbaum’s statement that a person can lack self-care skills and still be competent to vote.
Appellees contend (at 56-57) that Dr. Appelbaum’s testimony was inadmissible under Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579 (1993). That contention is not properly before this Court. Appellees objected to Dr. Appelbaum’s testimony on Daubert grounds in the district court, but that court never ruled on the objection; by granting summary judgment to Appellees, the district court rendered the Daubert issue moot. In exactly the same circumstances, this Court has “decline[d] to address the Daubert issue in the first instance,” because “Daubert makes it plain that the trial court is to act as a gatekeeper.” Tenbarge v. Ames Taping Tool Systems, Inc., 128 F.3d 656, 659 (8th Cir. 1997) (internal quotation marks omitted; emphasis added); see also Kumho Tire Co., Ltd. v. Carmichael, 526 U.S. 137, 152-153 (1999) (describing district court’s “broad latitude” to determine reliability of expert evidence and to choose the procedures by which reliability will be determined in particular cases); Wagner v. Hesston Corp., 450 F.3d 756, 758 (8th Cir. 2006) (stating that “[t]rial courts are given broad discretion in fulfilling [Daubert’s] gatekeeping role”).

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In any event, Dr. Appelbaum’s testimony readily satisfies the Daubert standard. “‘A review of the caselaw after Daubert shows that the rejection of expert testimony is the exception rather than the rule.’” Robinson v. GEICO General Ins. Co., 447 F.3d 1096, 1100 (8th Cir. 2006) (quoting advisory committee note to Fed. R. Evid. 702). There is no basis for making an exception to the rule here. Dr. Appelbaum is one of America’s leading experts on the assessment of decisional competence; he has “published many papers, in both medical and legal journals, and several books that address this issue,” and he was one of the two lead researchers in “the MacArthur Treatment Competence Study, the largest study ever undertaken of the decisionmaking competence of persons with mental disorders.” App. 700; see also id. at 712-727 (listing his publications within the previous ten years).
Dr. Appelbaum has also worked specifically on issues relating to voting competence, and those efforts have resulted in at least two peerreviewed articles that formed part of the basis for his testimony in this case. Id. at 700.5 Dr. Appelbaum used the “standard approach to evaluation” of

5 See Paul S. Appelbaum et al., The Capacity to Vote of Persons with Alzheimer’s Disease, 162 AM. J. PSYCHIATRY 2094 (2005); Jason H. Karlawish, Richard J. Bonnie, Paul S. Appelbaum, et al., Addressing the

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decisional competence and tailored the assessment to measure competence to make the decision at issue here (voting). App. 796-799.6 His testimony is clearly reliable under Daubert. See Kumho Tire, 526 U.S. at 149-151 (noting that the Daubert inquiry is “a flexible one” with no “definitive checklist or test” but stating that peer review and publication, as well as general acceptance within a scientific community, are factors supporting admissibility) (internal quotation marks omitted).

Ethical, Legal and Social Issues Raised by Voting by Persons with Dementia, 292 JAMA 1345 (2004).
6 Appellees misstate Dr. Appelbaum’s testimony when they say (at 56) that he acknowledged a lack of agreement on the assessment of competency to vote. Dr. Appelbaum suggested that a voting-specific method to assess competency had not yet been “crystallized,” which is why he used the standard techniques for assessing competency across decisional areas. App. 488. (He used those general assessment techniques instead of the “CATV”—a voting-specific competency assessment tool he is developing for use to be administered by people who have not been generally trained to do competency evaluations—precisely because he wished to avoid using a tool that had not yet “been validated with a sample of people with mental illness.” Supp. App. A-3. Despite Appellees’ suggestions to the contrary (at 56-57), it is hard to see how Dr. Appelbaum’s refusal to use an unproven technique made his testimony less reliable.) He stated that there was “not general agreement on where the line [of voting competence] should be drawn” as a legal or policy matter, not as a scientific matter. App. 509. (To respond to that problem, he treated the voting competency standard articulated by the court in Doe v. Rowe, 156 F. Supp.2d 35 (D. Me. 2001), as setting forth the relevant legal standard. App. 509-510.)

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II. MISSOURI’S VOTING BAN VIOLATES THE FOURTEENTH AMENDMENT
As we showed in our opening brief (at 42-44), Missouri’s voting ban is subject to strict scrutiny under the Fourteenth Amendment. As we also showed (at 44-51), the voting ban fails that scrutiny. Appellees disagree on both counts, but their arguments are unavailing. A. Under Burdick, the Voting Ban is a “Severe” Restriction That Must
Satisfy Strict Scrutiny Appellees suggest (at 42-45), that Burdick v. Takushi, 504 U.S. 428 (1992), dictates that the Missouri voting ban must be judged by a balancing test and not strict scrutiny. But Burdick itself recognizes that “severe” restrictions on the right to vote must satisfy strict scrutiny. Burdick, 504 U.S. at 434. Burdick’s lesser “important regulatory interests” standard applies only to “reasonable, nondiscriminatory” restrictions. Id. As we explained in our opening brief (at 44), Missouri’s voting ban is even more severe than restrictions (like the durational residency requirement invalidated in Dunn v. Blumstein, 405 U.S. 330 (1972)) to which the Supreme Court has applied strict scrutiny. Unlike restrictions that have been held to be reasonable and nondiscriminatory—which merely regulate how, and not whether, voters can express their views at the polls—Missouri’s voting ban entirely and indefinitely disenfranchises individuals under full

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guardianship. It is a paradigm case of a “severe” restriction, and it cannot be upheld unless it satisfies strict scrutiny. B. The Voting Ban is Not “Narrowly Drawn to Advance a State Interest
of Compelling Importance” To satisfy strict scrutiny, the state must prove that the voting ban is “narrowly drawn to advance a state interest of compelling importance.” Burdick, 504 U.S. at 434. Appellees suggest three state interests that might be served by the ban: the interest in assuring “rational” or “understanding” voting (Appellees’ Br. 45-48); the interest in preventing “double voting” (id. at 48-49); and the interest in preserving public perceptions of the electoral process (id. at 49-50). None of these asserted interests can justify Missouri’s categorical ban on voting by individuals under full guardianship. 1. The Voting Ban is Not Narrowly Tailored to Any State Interest in
Assuring “Rational” or “Understanding” Voting Appellees contend (at 45-46) that the voting ban serves Missouri’s interest in “assuring its citizenry that participants in [its] elections be able to understand the electoral choices they make by voting on a particular candidate or issue.” They rely on dicta from a 1981 district court decision, which asserted that, under New York’s guardianship procedure at the time, an incompetency adjudication “[p]resumably” included a determination that the individual lacks “the ability to cast a rational vote.” Manhattan State

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Citizens Group, Inc. v. Bass, 524 F. Supp. 1270, 1274 (S.D.N.Y. 1981). Whatever was true of New York law in 1981, the record in this case demonstrates that Missouri’s voting ban is not narrowly tailored to serve any asserted state interest in “understanding” or “rational” voting. Cf. Dunn, 405 U.S. at 356 (noting that “the criterion of ‘intelligent’ voting is an elusive one, and susceptible to abuse”).
As we have shown (see pp. 1, 9-10, supra), Missouri guardianship determinations are made on the basis of an evaluation of self-care skills only. But a lack of self-care skills does not imply incompetence to vote. By disenfranchising all individuals who are under full guardianship, Missouri law denies the franchise to individuals who are fully competent to vote. In at least a dozen other states, the law requires an individualized inquiry into voting competence before disenfranchising a person who is under guardianship. See Opening Br. 32 & n.17. Missouri’s failure to follow that more narrowly tailored approach—an approach Appellees’ own expert agrees is “reasonable,” App. 738—reflects a failure to employ “the exacting standard of precision” strict scrutiny requires. Dunn, 405 U.S. at 360.
Appellees argue (at 47-48) that various laws deprive people under guardianship of other rights, such as the right to possess a firearm, enter into a contract, receive a driver’s license, or serve on a jury. But those laws are

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very different from Missouri’s voting ban. The voting ban is categorical and provides no individualized inquiry into voting competence. By contrast, the jury-service laws Appellees cite (at 48) impose no categorical prohibition on service by persons under guardianship; to the contrary, they require an individualized determination that a given person is “incapable . . . to render satisfactory jury service,” 28 U.S.C. § 1865(b)(4); see also Mo. Rev. Stat. § 494.425 (similar). Missouri’s driver’s license law, which Appellees also cite (at 47), similarly provides for an individualized inquiry. See Opening Br. 35.
The federal prohibition on gun possession by individuals who “have been adjudicated a mental defective,” 18 U.S.C. § 922(g)(4), is much more directly related to the self-care determination that is made in a guardianship proceeding than is Missouri’s voting ban. See Mo. Rev. Stat. § 475.010(9) (self-care determination includes “safety”). And the right to vote receives far more constitutional protection in any event than does any right to possess a gun. See United States v. Pfeifer, 371 F.3d 430, 438 (8th Cir. 2004) (“[T]he Second Amendment does not guarantee the right to possess a firearm unless the firearm has some reasonable relationship to the

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maintenance of a militia.”).7 A ruling invalidating Missouri’s voting ban
would not imply that Section 922(g)(4)’s ban on gun possession is
unconstitutional.
2. The State’s Asserted Interests in Avoiding “Double Voting” and Preserving the Public’s Perception of the Electoral Process Rest on
Mere Speculation Appellees assert (at 48-49) that Missouri’s voting ban prevents
“double voting,” because individuals under full guardianship “would be
particularly susceptible to influence by their guardians or any others with
whom they have contact.” They also assert (at 49-50) that permitting
individuals under guardianship to vote “would adversely impact the public’s
perception of the dignity and efficacy of the democratic process.” Even if
these were compelling interests, Appellees have cited absolutely no evidence
to support the contention that the voting ban is necessary to serve them.
Post hoc rationalizations cannot overcome strict scrutiny. “To be a
compelling interest, the State must show that the alleged objective was the
legislature’s ‘actual purpose,’” and that the legislature “had a strong basis in
evidence to support [the asserted] justification before it implement[ed]” the
7 To the extent that the provision of the Restatement of Contracts cited by Appellees (at 47) is the law, it too is far more closely related than is a voting ban to the self-care decision made in guardianship proceedings—which often turn on the inability to manage money, App. 704—and involves a far less constitutionally protected right than the right to vote.

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challenged law. Shaw v. Hunt, 517 U.S. 899, 908 n.4 (1996). See also Thompson v. Western States Medical Center, 535 U.S. 357, 373 (2002) (“[W]e have generally only sustained statutes on the basis of hypothesized justifications when reviewing statutes merely to determine whether they are rational.”). Far from “a strong basis in evidence,” Appellees present no evidence whatsoever in support of their double-voting and public-perception interests. Accordingly, they cannot carry their burden of proof.
As for the double-voting interest, Appellees make no effort to show that double voting is a problem in the many states that permit people under guardianship to vote. Nor do they make an effort to show that people under guardianship are any more vulnerable to coercion than elderly people who have moved in with their adult children or any other class of voters. Nor do they offer any evidence to suggest that the general federal and state prohibitions on voter intimidation and coercion, e.g., 42 U.S.C. § 1971(b), are inadequate to prevent double voting in this context.
As for the public-perception interest, Appellees again can point to no evidence regarding public perceptions of the electoral process in Missouri or in any of the states that permit people under guardianship to vote. Nor do Appellees make any effort to show that public opinion will view the electoral process as lacking “dignity and efficacy” if people under

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guardianship are permitted to vote after an individualized determination of their voting competence. And to the extent that members of the public believe, based on unsubstantiated “negative attitudes, or fear,” that allowing people with mental disabilities to vote will always deprive the electoral process of dignity, catering to that belief is not a compelling interest; to the contrary, it is an impermissible one. City of Cleburne v. Cleburne Living Center, 473 U.S. 432, 448 (1985); see also id. (“Private biases may be outside the reach of the law, but the law cannot, directly or indirectly, give them effect.”) (internal quotation marks omitted). III. APPELLEES’ PROCEDURAL ARGUMENTS ARE MERITLESS
Appellees contend (at 24-30) that they are not the proper defendants, that Plaintiff Scaletty’s claims are moot, and that Plaintiff MOPAS lacks standing. The district court correctly rejected each of these arguments.
A. Missouri’s Secretary of State and Attorney General Are Proper Defendants
In what they characterize as an Eleventh Amendment argument, Appellees contend (at 24) that they are not proper parties because they “are not the public officers responsible for the registration of voters and the operation of elections.” As the district court recognized, that argument “improperly blends two distinct defenses.” Opening Br. Add. 5. Because Plaintiffs sued state officials in their official capacities and seek only

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prospective relief for what is alleged to be an ongoing violation of federal law, the Eleventh Amendment is no bar to this suit. See Verizon Maryland, Inc. v. Public Service Comm’n, 535 U.S. 635, 645 (2002) (“In determining whether the doctrine of Ex parte Young[, 209 U.S. 123 (1908),] avoids an Eleventh Amendment bar to suit, a court need only conduct a ‘straightforward inquiry into whether [the] complaint alleges an ongoing violation of federal law and seeks relief properly characterized as prospective.’”) (citation omitted).8 If the Secretary of State and the Attorney General are not proper defendants, that is a matter going to the merits, not Eleventh Amendment immunity. See id. at 646 (“[T]he inquiry into whether suit lies under Ex parte Young does not include an analysis of the merits of the claim.”).
On the merits, Appellees are proper defendants. Appellee Carnahan, Missouri’s Secretary of State, is the “chief state election official.” Mo. Rev. Stat. §§ 28.035, 115.136. She has a key role in implementing the state’s voting ban: She is responsible for sending local election authorities a list of individuals who have been adjudged incapacitated so that the local authorities may remove those individuals from voting rolls. See Mo. Rev.
8 The ADA and Rehabilitation Act validly override state sovereign immunity in any event. See n. 1, supra.

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Stat. § 115.195.3. Indeed, the Secretary of State’s inclusion of Plaintiff Scaletty’s name on such a list was the trigger for the refusal of local election authorities to permit him to vote in 2004. O’Neal Dep. 47. There is simply no doubt that the Secretary of State is a proper defendant in this statewide action to enjoin Missouri’s voting ban.
Appellee Nixon, Missouri’s Attorney General, is also a proper party. State law charges him with instituting civil proceedings to enforce, inter alia, the statutory and constitutional provisions barring voting by individuals under guardianship. Mo. Rev. Stat. § 27.060. This case is therefore decisively unlike Reproductive Health Services of Planned Parenthood of the St. Louis Region, Inc. v. Nixon, 428 F.3d 1139, 1145 (8th Cir. 2005), where the plaintiffs challenged a law that could be enforced only through misdemeanor prosecutions and licensing proceedings. The Missouri Attorney General has “no power to take adverse licensing actions, a task left to professional licensing boards,” and he can participate in misdemeanor proceedings only when so instructed by the Governor or a trial court— instructions he had not received at the time of the Reproductive Health Services case. Id.
This case is also decisively unlike the two out-of-circuit cases on which Appellees rely. In Okpalobi v. Foster, 244 F.3d 405 (5th Cir. 2001),

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plaintiffs sued the Attorney General to challenge a statute that authorized private parties to initiate tort suits against abortion providers. The Fifth Circuit held that the Attorney General was not a proper defendant, because he had taken “no act” under the statute, he had made “no threat to act” under the statute, and indeed he had “no ability to act” under the statute. Id. at 421. And Children’s Healthcare is a Legal Duty, Inc. v. Deters, 92 F.3d 1412, 1417 (6th Cir. 1996), cert. denied, 519 U.S. 1149 (1997), is similarly a case where the Attorney General had no power to enforce the challenged law. But the Attorney General clearly has power to act to enforce the statute Plaintiffs challenge here.
B. Plaintiff Scaletty’s Claims Are Not Moot At the time Plaintiff Scaletty joined this action, election officials would not permit him to vote, because the Secretary of State had placed him on a list of ineligible voters due to his guardianship. At that point, Scaletty plainly had standing. As the district court properly held, “standing is to be evaluated at the time the lawsuit is initiated, and there is no doubt that at the time Scaletty joined the suit as a plaintiff he was suffering an injury in fact because he was denied the right to vote.” Opening Br. Add. 3 (citing Friends of the Earth, Inc. v. Laidlaw Envt’l Services (TOC), Inc., 528 U.S.

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167, 189 (2000); McCarthy v. Ozark Sch. Dist., 359 F.3d 1029, 1035 (8th Cir. 2004)).
Because local election officials gave Scaletty a voter registration card after he joined this action, Appellees contend (at 26-28) that his claims are now moot. But voluntary cessation of a challenged practice cannot create mootness unless defendants bear the “heavy burden” of demonstrating that it is “absolutely clear that the allegedly wrongful behavior could not reasonably be expected to recur.” Friends of the Earth, 528 U.S. at 189 (internal quotation marks omitted). The district court correctly concluded that Appellees could not satisfy that burden. Opening Br. Add. 4.
Appellees present no evidence to suggest that it is “absolutely clear” that Scaletty will not be denied the right to vote again. Instead, they contend that they need not carry the voluntary cessation doctrine’s heavy burden, because “it is not the acts of defendant state officials” (Appellees’ Br. 28) that either deprived Scaletty of the right to vote in the first place or restored that right to him once he joined this suit. As we have shown, however, it was an act of the defendant Secretary of State—placing Scaletty on a list of ineligible voters—that led the local election officials to prohibit him from voting. See p. 24, supra. As the “chief state election official,” Mo. Rev. Stat. §§ 28.035, 115.136, Appellee Carnahan can hardly evade responsibility

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either for the initial disenfranchisement or for local election officials’ decision, under the cloud of this lawsuit, to permit Scaletty to vote. This Court cannot declare Scaletty’s suit moot unless it is “absolutely clear” that he “no longer ha[s] any need of the judicial protection [he] sought” when he joined this suit. Adarand Constructors, Inc. v. Slater, 528 U.S. 216, 224 (2000) (per curiam). Appellees cannot satisfy that standard.
C. Plaintiff MOPAS Has Associational Standing The district court concluded (Opening Br. Add. 4-5) that Plaintiff MOPAS has associational standing to sue on behalf of its constituents. Appellees contest that conclusion, but they do not deny that the evidence shows that MOPAS satisfies the three requirements for associational standing: its constituents would have standing to sue in their own right (Opening Br. 9-12); it is seeking to protect interests that are germane to its purpose as an organization (Opening Br. 9); and participation by its individual constituents is not necessary to this lawsuit. See Hunt v. Washington Apple Advertising Comm’n, 432 U.S. 333, 343 (1977); Arkansas Medical Soc., Inc. v. Reynolds, 6 F.3d 519, 528 (8th Cir. 1993). Instead, Appellees rest their argument on a formalism. Although the summary judgment record contains discussions of seven individual MOPAS constituents who lost their right to vote without an individualized assessment

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of voting competence (Opening Br. 9-10), Appellees contend (at 29-30) that those constituents cannot provide the basis for associational standing because they were not named specifically in the complaint.
That contention makes no sense. The amended complaint specifically alleged that “[t]he MOPAS constituents on whose behalf this action is brought have each suffered, or will suffer, such injuries that would allow them to individually bring suit against defendants.” App. 168 (¶ 15). That allegation was perfectly adequate under “the liberal system of ‘notice pleading’ set up by the Federal Rules.” Leatherman v. Tarrant County Narcotics Intelligence and Coordination Unit, 507 U.S. 163, 168 (1993). “Rule 8(a)(2) requires that a complaint include only ‘a short and plain statement of the claim showing that the pleader is entitled to relief.’” Id. (quoting Fed. R. Civ. P. 8(a)(2)). And the Federal Rules bar courts from imposing any requirement (outside of contexts specifically addressed by Rule 9(b) or federal statutes) that plaintiffs plead the factual basis for their claims with particularity. See Leatherman, 507 U.S. at 168.
The “simplified notice pleading standard” of the Federal Rules “relies on liberal discovery rules and summary judgment motions to define disputed facts and issues and to dispose of unmeritorious claims.” Swierkiewicz v. Sorema N.A., 534 U.S. 506, 512 (2002). At summary judgment, “the

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plaintiff can no longer rest on [the complaint’s] ‘mere allegations,’ but must ‘set forth’ by affidavit or other evidence ‘specific facts,’” which, taken as true, would establish standing. Lujan v. Defenders of Wildlife, 504 U.S. 555, 561 (1992) (quoting Fed. R. Civ. P. 56(e)). And that is exactly how the facts relating to associational standing were developed here. Evidence in the summary judgment record—which was provided to Appellees in discovery—contains specific facts establishing that at least seven MOPAS constituents would have standing to sue in their own right. Opening Br. 910. That evidence is more than sufficient to establish associational standing at this stage of litigation.
CONCLUSION For the foregoing reasons and the reasons set forth in our opening brief, the judgment of the district court should be reversed and the case remanded for entry of summary judgment for the plaintiffs.

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CERTIFICATE OF COMPLIANCE Pursuant to Federal Rule of Appellate Procedure 32(a)(7)(C), Appellants, by their undersigned counsel, hereby certify that the Brief of Appellant complies with the type-volume limitation of FRAP 32(a)(7)(B) in that it contains 6,772 words. Pursuant to Eighth Circuit Rule 28A(c), Appellants state that the brief was prepared with Microsoft Office Word 2002.
________________________ James M. Kirkland

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Respectfully submitted,

James M. Kirkland #50794 Sonnenschein, Nath & Rosenthal LLP 4520 Main Street, Suite 1100 Kansas City, MO 64111 (816) 460-2400
Anthony E. Rothert American Civil Liberties Union of Eastern Missouri 4557 Laclede Avenue St. Louis, MO 63108 (314) 361-3635
Neil Bradley ACLU National Voting Rights Project 2600 Marquis One Tower 245 Peachtree Center Ave Atlanta, GA 30303 (404) 523-2721

Samuel R. Bagenstos One Brookings Dr., Box 1120 St. Louis, MO 63130 (314) 935-9097
Ira A. Burnim Jennifer Mathis Alison N. Barkoff Judge David L. Bazelon Center
for Mental Health Law 1101 15th St., NW, Suite 1212 Washington, DC 20005 (202) 467-5730
Michael H. Finkelstein David Hale Missouri Protection and Advocacy Services 925 South County Club Drive Jefferson City, MO 65109 (573) 893-3333

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CERTIFICATE OF FILING AND SERVICE
I hereby certify that a copy of Appellants’ Reply Brief was filed on
November 27, 2006 by Federal Express addressed to the Clerk and was served by
depositing the same in the United States Mail, postage prepaid, on November 27,
2006, addressed to the following counsel:
Michael Pritchett MISSOURI ATTORNEY GENERAL’S OFFICE Broadway State Office Building P.O. Box 899 Jefferson City, MO 65102
Wan J. Kim David K. Flynn Sarah E. Harrington Department of Justice Civil Rights Division, Appellate Section Ben Franklin Station P.O. Box 14403 Washington, D.C. 20044-4403
Charles M. Thomas Assistant United States Attorney Office of the United States Attorney United States Courthouse 400 E. 9th Street, Room 5510 Kansas City, MO 64106
________________________ James M. Kirkland

 
 No. 06-3014
IN THE UNITED STATES COURT OF APPEALS FOR THE EIGHTH CIRCUIT
MISSOURI PROTECTION AND ADVOCACY SERVICES, INC., et al.,
Plaintiffs-Appellants, v.
ROBIN CARNAHAN, et al.,
Defendants-Appellees. ______________________________________
Appeal from the United States District Court, Western District of Missouri, Central Division The Honorable Ortrie D. Smith, U.S. District Judge
_____________________________________
APPELLEES’ BRIEF ______________________________________
JEREMIAH W. (JAY) NIXON Attorney General
MICHAEL PRITCHETT Missouri Bar No. 33848 Assistant Attorney General
P.O. Box 899 Jefferson City, MO 65102 Telephone: (573) 751-3321 Fax No.: (573) 751-9456 ATTORNEYS FOR APPELLEES

Summary and Request for Oral Argument Plaintiffs-Appellants Robert Scaletty and Missouri Protection and Advocacy Services, Inc. (MOPAS), challenge the provisions in Missouri’s Constitution and statutes that bar from voting persons who have been adjudged fully incapacitated. They assert that these provisions violate the due process and equal protection clauses of the Fourteenth Amendment to the United States Constitution, the Americans with Disabilities Act (ADA), and Section 504 of the Rehabilitation Act. Missouri’s ban on voting by persons adjudged fully incapacitated, however, is consistent with the Fourteenth Amendment and federal statutes because the authority the Constitution grants the States to establish voting qualifications is broad enough to permit States to protect the integrity of their electoral systems by assuring that participants in elections are able to understand their electoral choices. Further, Missouri’s guardianship law provides that a person is to be found fully incapacitated only as a last resort and, before doing so, requires individual assessment of the person’s capacity. Missouri does not bar anyone from voting simply because he or she may be disabled in some, or many, respects. Each person is adjudged fully or partially incapacitated, or not incapacitated at all, by the probate court based on his or her own individual circumstances. Moreover, even if there were a valid claim here, Scaletty’s claim is moot and MOPAS lacks standing.
1

The defendant-appellee state officials request fifteen minutes for oral argument. 2

Table of Contents
Summary and Request for Oral Argument . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1
Table of Contents . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2
Table of Authorities . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5
Issues Presented for Review . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10
Statement of the Case . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14
Procedural History . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14
Statement of Facts and Applicable Law . . . . . . . . . . . . . . . . . . . . . . . . . . . . 16
Summary of the Argument . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 20
Standard of Review . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 23
Argument . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 24
I. Missouri’s Secretary of State and Attorney General should have been dismissed as parties because neither state official has a role in the enforcement of the constitutional and statutory provisions at issue here . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 24
II. Plaintiff Scaletty’s claims are moot and should be dismissed because the local election authority acknowledges his right to vote and there is no reasonable basis to believe that there is any likelihood that any public official will attempt to interfere with his voting rights . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 26
III. Plaintiff MOPAS lacks associational standing to purse the claims raised in this action because associational standing requires the complaint to identify an individual constituent of the organization who has individual standing to bring the claims raised and the
3

complaint in this case does not identify any individual MOPAS constituent who has viable individual claims . . . . . . . . . . . . . . . . . . . . 29
IV. Missouri’s prohibition on voting by persons adjudged fully incapacitated is consistent with the Americans with Disabilities Act and the Rehabilitation Act because Congress, in these Acts, did not make unmistakably clear its intent that they were meant to restrict the broad constitutional power of the States to determine voter qualifications. Even if these Acts are construed to constrain this state power, Missouri’s prohibition complies with the Acts by providing an individualized assessment of the capacity of persons undergoing guardianship proceedings . . . . . . . . . . 31
The States have broad authority to determine voter qualifications . . . . 31
The ADA and the Rehabilitation Act do not impact the authority of the States to determine voter qualifications . . . . . . . . . . . . . . . . . . . 33
Neither the ADA nor the Rehabilitation Act makes unmistakably clear any Congressional intent to restrict the authority of athority of the States to regulate voting qualifications . . . . . . . . . . . . . . . . . . . . 35
Even if the ADA and the Rehabilitation Act are construed to apply to the qualifications of voters, neither affords the relief requested here . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 37
V. Missouri’s prohibition on voting by persons adjudged fully incapacitated is consistent with the equal protection and due process clauses of the United States Constitution because the prohibition advances to a high degree Missouri’s important interest in assuring an electorate composed of persons who retain at least some minimal capacity to function on their own in society . . . . . . . . . 41
States have great authority in determining voter qualifications . . . . . . 41
The Burdick balancing test . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 42
Missouri’s important interests justify its prohibition on voting by persons adjudged fully incapacitated . . . . . . . . . . . . . . . . . . . . . . . . . . . 45
4

VI. Missouri law assures that persons who have the capacity to vote, however that assessment may appropriately be made, can vote by providing a procedure compliant with procedural due process through which individualized determinations are made with regard to the persons subject to competency proceedings . . . . . . . . . . 52 Statutory provisions regarding capacity adjudications . . . . . . . . . . . . . 52 Missouri statutes governing capacity proceedings provide due process . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 54 Assessment of capacity to vote in Missouri capacity proceedings . . . . 56 Missouri capacity standard allows assessment of capacity to vote 61 Summary . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 64
Conclusion . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 65 Certificate of Service and Compliance . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 66
5

Table of Authorities Cases Alexander v. Margolis, 921 F. Supp. 482 (W.D. Mich. 1995) . . . . . . . . . . . . . . . 38 Anderson v. Celebrezze, 103 S. Ct. 1564 (1983) . . . . . . . . . . . . . . . . . . . . . . . . . 43 Anderson v. Liberty Lobby, Inc., 106 S. Ct. 2505 (1986) . . . . . . . . . . . . . . . . . . . 23 Atkins v. Parker, 105 S. Ct. 2520 (1985) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 54 Buckhannon Bd. & Care Home, Inc. v. West Virginia Dep’t of Health & Human
Resources, 121 S. Ct. 1835 (2001) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 27-28 Buckley v. Valeo, 96 S. Ct. 612 (1975) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 49-50 Burdick v. Takushi, 112 S. Ct. 2059 (1992) . . . . . . . . . . . . . . . . . . . . 21, 42-43, 45 Burson v. Freeman, 112 S. Ct. 1846 (1992) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 49 Bush v. Gore, 121 S. Ct. 525 (2000) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 42 Celotex Corp. v. Catrett, 106 S. Ct. 2548 (1986) . . . . . . . . . . . . . . . . . . . . . . . . . 23 Children’s Healthcare is a Legal Duty, Inc. v. Deters, 92 F.3d 1412
(6th Cir. 1996) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 25 City of Los Angeles v. Lyons, 103 S. Ct. 1660 (1983) . . . . . . . . . . . . . . . . . . . . . 27 Cleburne v. Cleburne Living Center, Inc., 105 S. Ct. 3249 (1985) . . . . . . . . . . . 50 Colorado Republican Fed. Campaign Comm. v. FEC, 116 S. Ct. 2309 (1996) . 49 Doe v. Rowe, 156 F. Supp. 2d 35 (D. Me. 2001) . . . . . . . . . . . . . . . . . . . . . . 37, 47 Eu v. San Francisco County Democratic Cent. Committee, 109 S. Ct. 1013
(1989) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 44, 49
6

Ex Parte Young, 28 S. Ct. 441 (1908) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 24-25 Forest Park II v. Hadley, 408 F.3d 1052 (8th Cir. 2005) . . . . . . . . . . . . . . . . . . . 26 Gaunt v. Brown, 341 F. Supp. 1187 (S.D. Ohio 1972), aff'd w/o op., 93 S.Ct. 69
(1972) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 45 Gregory v. Ashcroft, 111 S. Ct. 23952400 (1991) . . . . . . . . . . . . . . . . . . 32-33, 36 Johnson v. Hood, 430 F.2d 610 (5th Cir. 1970) . . . . . . . . . . . . . . . . . . . . . . . 48-49 Katzenbach v. Morgan, 86 S. Ct. 1717 (1966) . . . . . . . . . . . . . . . . . . . . . . . . . . . 34 Lassiter v. Northampton County Bd. of Elections, 79 S. Ct. 985(1959) . . . . . . . 45 Layton v. Elder, 143 F.3d 469 (8th Cir. 1998) . . . . . . . . . . . . . . . . . . . . . . . . . . . 38 Lightbourn v. City of El Paso, 118 F.3d 421 (5th Cir. 1997), cert. denied,
118 S. Ct. 700 (1998) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 34 Manhattan State Citizens Group, Inc. v. Bass, 524 F. Supp. 1270 (S.D.N.Y.
1981) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 45-46 Marston v. Lewis, 93 S. Ct. 1211 (1973) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 44 Mendez v. Heller, 530 F.2d 457 (2d Cir.1976) . . . . . . . . . . . . . . . . . . . . . . . . . . . 25 Murphy v. Hunt, 102 S. Ct. 1181 (1982) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 28 Nader v. Schaffer, 417 F. Supp. 837 (D. Conn. 1976), aff'd. w/o op., 97 S.Ct. 516
(1976) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 45 New v. Corrough, 370 S.W.2d 323 (Mo. 1963) . . . . . . . . . . . . . . . . . . . . . . . . . . 46 Norman v. Reed, 112 S. Ct. 698 (1992) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 43 Okpalobi v. Foster, 244 F.3d 405 (5th Cir. 2001) . . . . . . . . . . . . . . . . . . . . . . . . 25 Oregon v. Mitchell, 91 S. Ct. 260 (1970) . . . . . . . . . . . . . . . . . . . . . . . . . 31-33, 41
7

Pennsylvania Dept. of Corrections v. Yeskey, 118 S. Ct. 1952 (1998) . . . . . 35-36 Pennsylvania Protection & Advocacy, Inc. v. Houston, 1136 F. Supp. 2d 353
(E.D. Pa. 2001) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 29 Pottgen v. Missouri State High Sch. Activities Ass’n., 40 F.3d 926 (8th Cir.
1994) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 38 Preiser v. Newkirk, 95 S. Ct. 2330 (1975) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 26 Reaves v. Missouri Dep’t of Elem. & Sec. Educ., 422 F.3d 675
(8th Cir. 2005) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 54-55 Reproductive Health Services of Planned Parenthood of the St. Louis Region,
Inc., v. Nixon, 428 F.3d 1139 (8th Cir. 2005) . . . . . . . . . . . . . . . . . . . . . . . . 25 Richardson v. Ramirez, 94 S. Ct. 2655 (1974) . . . . . . . . . . . . . . . . . . . . . . . . . . . 44 Rockefeller v. Powers, 74 F.3d 1367 (2d Cir. 1995) . . . . . . . . . . . . . . . . . . . . . . . 43 Rosario v. Rockefeller, 93 S. Ct. 1245 (1973) . . . . . . . . . . . . . . . . . . . . . . . . . . . 44 South Carolina v. Katzenbach, 86 S. Ct. 803 (1966) . . . . . . . . . . . . . . . . . . . . . . 33 Southeastern Community College v. Davis, 93 S. Ct. 2361 (1979) . . . . . . . . . . . 49 Sugarman v. Dougall, 93 S. Ct. 2842 (1973) . . . . . . . . . . . . . . . . . . . . . . . . . . . . 33 Tennessee Protection & Advocacy, Inc. v. Board of Educ., 24 F. Supp. 2d 808
(M.D. Tenn. 1998) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 30 Tennessee v. Lane, 124 S. Ct. 1978 (2004) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 50 Thompson v. Oklahoma, 108 S. Ct. 2687 (1988) . . . . . . . . . . . . . . . . . . . . . . . . . 47 Tindle v. Caudell, 56 F.3d 966 (8th Cir. 1995) . . . . . . . . . . . . . . . . . . . . . . . . . . . 24
8

United Food and Commercial Workers Union Local 751 v. Brown Group, Inc., 116 S. Ct. 1529 (1996) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 29
United States Civil Serv. Comm’n v. National Assoc. of Letter Carriers, 93 S. Ct. 2880 (1973) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 50
United States v. Dorsch, 363 F.3d 784 (8th Cir. 2004) . . . . . . . . . . . . . . . . . . . . 47 United States v. Mitchell, 365 F.3d 215 (3d Cir. 2004) . . . . . . . . . . . . . . . . . . . . 57 Wit v. Berman, 306 F.3d 1256 (2d Cir. 2002) . . . . . . . . . . . . . . . . . . . . . . . . . . . . 43
Constitutional Provisions and Statutes 18 U.S.C. § 922 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 47 28 U.S.C. § 1865 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 48 29 U.S.C. § 794 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 34, 38 42 U.S.C. § 12101 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 34 42 U.S.C. § 12131 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 36, 38 42 U.S.C. § 12132 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 36-37 42 U.S.C. § 1973 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 35 Fed. R. Civ. P. 25 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15 Fed. R. Civ. P. 56 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 23 Mo. Constitution, Art. I, § 2 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 31 Mo. Constitution, Art. I, § 4 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 31 Mo. Constitution, Art. II, § 1 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 31
9

Mo. Constitution, Art. VIII, § 2

. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 16, 54

§ 115.023, RSMo . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 24

§ 115.133, RSMo Supp. 2005 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 16, 54

§ 115.141, RSMo . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 24

§ 115.195.3, RSMo Supp. 2005 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 18

§ 27.060, RSMo . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 25

§ 302.060(5), RSMo . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 47

§ 475.010,RSMo . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 17, 39, 58, 62

§ 475.060, RSMo . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 52

§ 475.075,RSMo . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 17, 39, 52-54

§ 475.078, RSMo . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 17-18, 53, 55, 59

§ 475.082, RSMo . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 46, 53

§ 475.083, RSMo Supp. 2005 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 46, 54

§ 494.425, RSMo Supp. 2005 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 48

Miscellaneous
Schriner, et al., Democratic Dilemmas: Notes on the ADA and Voting Rights of People with Cognitive and Emotional Impairments, 21 Berkeley J. of Emp. & Lab. L. 437 (2000) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 47
Waterstone, Constitutional and Statutory Voting Rights for People with Disabilities, 14 Stan. L. & Pol’y Rev. 353 (2003) . . . . . . . . . . . . . . . . . . . . 34

10

11

Issues Presented for Review I.
Whether Missouri’s Secretary of State and Attorney General should have been dismissed as parties when neither state official has a role in the enforcement of the constitutional and statutory provisions at issue here.
Reproductive Health Services of Planned Parenthood of the St. Louis Region, Inc., v. Nixon, 428 F.3d 1139 (8th Cir. 2005);
Ex Parte Young, 28 S. Ct. 441 (1908); Okpalobi v. Foster, 244 F.3d 405 (5th Cir. 2001) (en banc); Children’s Healthcare is a Legal Duty, Inc. v. Deters, 92 F.3d 1412 (6th Cir. 1996), cert. denied, 117 S. Ct. 1082 (1997).
II. Whether plaintiff Scaletty’s claims are moot and should be dismissed when the local election authority acknowledges his right to vote and there is no reasonable basis to believe that there is any likelihood that any public official will attempt to interfere with his voting rights. Preiser v. Newkirk, 95 S. Ct. 2330 (1975); Forest Park II v. Hadley, 408 F.3d 1052 (8th Cir. 2005); City of Los Angeles v. Lyons, 103 S. Ct. 1660 (1983); Murphy v. Hunt, 102 S. Ct. 1181 (1982).
12

III. Whether plaintiff MOPAS lacks associational standing to purse the claims raised in this action when associational standing requires the complaint to identify an individual constituent of the organization who has individual standing to bring the claims raised and the complaint in this case does not identify any individual MOPAS constituent who has viable individual claims. United Food and Commercial Workers Union Local 751 v. Brown Group, Inc., 116 S. Ct. 1529 (1996); Pennsylvania Protection & Advocacy, Inc. v. Houston, 1136 F. Supp. 2d 353 (E.D. Pa. 2001); Tennessee Protection & Advocacy, Inc. v. Board of Educ., 24 F. Supp. 2d 808 (M.D. Tenn. 1998).
IV. Whether Missouri’s prohibition on voting by persons adjudged fully incapacitated is consistent with the Americans with Disabilities Act and the Rehabilitation Act when Congress, in these Acts, did not make unmistakably clear its intent that they were meant to restrict the broad constitutional power of the States to determine voter qualifications. Even if these Acts are construed to constrain this state power, Missouri’s prohibition complies with the Acts by providing an individualized assessment of the capacity of persons undergoing guardianship proceedings.
13

Oregon v. Mitchell, 91 S. Ct. 260 (1970); Gregory v. Ashcroft, 111 S. Ct. 2395 (1991); Lightbourn v. City of El Paso, 118 F.3d 421 (5th Cir. 1997), cert. denied, 118 S. Ct. 700 (1998); 42 U.S.C. § 1973gg-6.
V. Whether Missouri’s prohibition on voting by persons adjudged fully incapacitated is consistent with the equal protection and due process clauses of the United States Constitution when the prohibition advances to a high degree Missouri’s important interest in assuring an electorate composed of persons who retain at least some minimal capacity to function on their own in society. Oregon v. Mitchell, 91 S. Ct. 260 (1970); Burdick v. Takushi, 112 S. Ct. 2059 (1992); Burson v. Freeman, 112 S. Ct. 1846 (1992); Colorado Republican Fed. Campaign Comm. v. FEC, 116 S. Ct. 2309 (1996).
VI. Whether Missouri law assures that persons who have the capacity to vote, however that assessment may appropriately be made, may vote by providing a procedure compliant with procedural due process through which individualized
14

determinations are made with regard to the persons subject to competency proceedings.
§ 475.010, RSMo; § 475.075, RSMo; § 475.078, RSMo; Reaves v. Missouri Dep’t of Elem. & Sec. Educ., 422 F.3d 675 (8th Cir. 2005).
15

Statement of the Case Procedural History. This case was initially filed by Steven M. Prye on October 8, 2004. App. 24. He claimed that Missouri’s constitutional and statutory prohibition on voting by persons who have been adjudged fully incapacitated violated the due process and equal protection clauses of the United States Constitution and also the Americans with Disabilities Act and the Rehabilitation Act. App. 30-36. Mr. Prye named as defendants then-Missouri Secretary of State Matt Blunt, Missouri Attorney General Jeremiah W. (Jay) Nixon, the Board of Election Commissioners for the City of St. Louis, and members of that Board. App. 24, 26. He sued the defendants in their official capacities. App. 24. As relief, Mr. Prye requested a declaration that Missouri’s prohibition on voting by persons adjudged fully incapacitated violated the United States Constitution, the Americans with Disabilities Act, and the Rehabilitation Act, and also requested injunctive relief requiring defendants to permit him to register to vote and to vote. App. 36. On December 6, 2004, Mr. Prye, joined by Bob Scaletty, Patrick W. Sharp, and Missouri Protection and Advocacy Services, Inc. (MOPAS), filed an amended complaint making the same claims as initially made by Mr. Prye and adding a claim of violation of the full faith and credit clause of the United States Constitution. App. 164-182. The plaintiffs to the amended complaint named the same defendants and
16

added the Board of Election Commissioners for Kansas City and its members as additional defendants. App. 164, 168-69. All defendants were sued in their official capacities. App. 164. The plaintiffs requested a declaration that Missouri’s prohibition on voting by persons adjudged fully incapacitated violated the United States Constitution, the Americans with Disabilities Act, and the Rehabilitation Act, and an injunction requiring defendants to permit them and persons similarly situated to register to vote and to vote, to provide notice to persons adjudged fully incapacitated that they can register to vote, and to provide notice and opportunity to be heard before the right to vote may be lost in future guardianship proceedings. App. 181.
With the inauguration of Robin Carnahan as Missouri’s Secretary of State in January 2005, she took Matt Blunt’s place as defendant by operation of Fed. R. Civ. P. 25(d).
On July 21, 2005, based on the stipulation of the parties, the district court dismissed without prejudice all claims of plaintiff Patrick W. Sharp and also dismissed without prejudice all claims against the Board of Election Commissioners of Kansas City, the Board of Election Commissioners of the City of St. Louis, and the members of both these boards. App. 247. On September 22, 2005, based on the stipulation of the parties, the district court dismissed without prejudice all claims of plaintiff Steven M. Prye. App. 250.
17

In March 2006, the remaining parties (plaintiffs Scaletty and MOPAS and the defendant state officials) filed cross motions for summary judgment. App. 376, 380. Because the defendants’ motion raised a question as to the constitutionality of the Americans with Disabilities Act, the district court, on March 30, 2006, provided notice to the United States Attorney General and to the local United States Attorney. App. 513.
Following responses and replies, including a response to defendants’ motion filed by the United States, on July 7, 2006, the district court granted defendants’ motion for summary judgment and denied plaintiffs’ motion for summary judgment. App. 622-634. This appeal, filed on August 3, 2006, followed.
Statement of Facts and Applicable Law. Article VIII, § 2, of the Missouri Constitution provides in relevant part: [N]o person who has a guardian of his or her estate or person by reason of mental incapacity . . . shall be entitled to vote.” Missouri law implements this Constitutional provision using the following language: “No person who is adjudicated incapacitated shall be entitled to register or vote.” § 115.133.2, RSMo Supp. 2005.1
Missouri law provides that an incapacitated person is “one who is unable by reason of any physical or mental condition to receive and evaluate information or to
1 All Missouri statutory citations are to RSMo 2000, unless otherwise indicated. 18

communicate decisions to such an extent that he lacks capacity to meet essential
requirements for food, clothing, shelter, safety or other care such that serious physical
injury, illness, or disease is likely to occur.” § 475.010(9), RSMo.
A partially incapacitated person is “one who is unable by reason of any physical
or mental condition to receive and evaluate information or to communicate decisions
to the extent that he lacks capacity to meet, in part, essential requirements for food,
clothing, shelter, safety, or other care without court-ordered assistance.”
§ 475.010(14), RSMo.
When a court finds that an individual who is the subject of a competency hearing
is:
in some degree incapacitated or disabled, or both, the court, in determining the degree of supervision necessary, shall apply the least restrictive environment principle as [set out in § 475.010(10), RSMo] and shall not restrict his personal liberty or his freedom to manage his financial resources to any greater extent than is necessary to protect his person and his financial resources. The court shall consider whether or not the respondent may be fully protected by the rendition of temporary protective services provided by a private or public agency or agencies; or by the appointment of a guardian or conservator ad litem; or by the appointment of a limited guardian or conservator; or, as a last resort, by the appointment of a guardian or conservator.
§ 475.075.10, RSMo.
An adjudication of incapacity operates “to impose upon the ward or protectee all
legal disabilities provided by law, except to the extent specified in the order of
adjudication . . . .” § 475.078.2, RSMo. In contrast, an adjudication of partial 19

incapacity “does not operate to impose upon the ward or protectee any legal disability provided by law except to the extent specified in the order of adjudication, provided that the court shall not impose upon the ward or protectee any legal disability other than those which are consistent with the condition of the ward or protectee.” § 475.078.1, RSMo.
“A person who has been adjudicated incapacitated or disabled or both shall be presumed to be incompetent. A person who has been adjudicated partially incapacitated or partially disabled or both shall be presumed to be competent.” § 475.078.3, RSMo.
Missouri probate courts are to notify the Missouri Secretary of State’s Office of persons who have been adjudged incapacitated. App. 427 (Dep. p. 11); § 115.195.3, RSMo Supp. 2005. The Secretary of State’s Office is then to provide this information to local election authorities. App. 427 (Dep. p. 11); § 115.195.3, RSMo Supp. 2005. The Missouri Secretary of State’s Office does not make the determination as to whether a particular adjudication of incapacity results in the removal of the ward’s right to vote. App. 429-30 (Dep. pp. 20-21).
When the Secretary of State’s Office sends out notices to local election authorities of persons who have been reported to that Office as having been adjudicated incapacitated, it provides a cover letter informing the recipients that
20

“Because all adjudications are not the same, you should check with your probate clerk to see if the adjudged had their voting rights removed.” App. 430 (Dep. pp. 21-22).
On August 17, 1999, a jury in the Jackson County, Missouri Probate Division found Plaintiff Robert Scaletty “incapacitated (with the exception of the right to vote).” App. 455-56. On January 7, 2005, the Kansas City Board of Election Commissioners mailed Mr. Scaletty’s voter identification card to his guardian and advised that Mr. Scaletty was eligible to vote. App. 458-60. Mr. Scaletty is listed as a registered voter in Missouri’s voter database. App. 462-65 (Printouts from Missouri’s Central Voter Registration).
Plaintiffs’ expert, Dr. Paul S. Appelbaum, admits that there is a line beyond which persons are sufficiently mentally impaired that they are not competent to vote. App. 480 (Dep. p. 48). Dr. Appelbaum admits that “there is not general agreement on where the line [between those competent to vote and those incompetent to vote] should be drawn.” App. 509. Dr. Appelbaum also admits that no standard for assessing capacity to vote has been “crystallized” yet. App. 488 (Dep. p. 85).
21

Summary of the Argument The judgment in favor of the state official defendants should be affirmed based on several jurisdictional grounds. Plaintiffs here seek an order requiring that they be allowed to register as voters and to be allowed to vote. But the defendants, the Secretary of State and the Attorney General of Missouri, are not the public officers responsible for registration of voters and the operation of elections. Because neither defendant has authority to provide the relief sought (right to register as voters and right to cast ballots in elections), this case should be dismissed due to defendants’ immunity from suit under the Eleventh Amendment. Plaintiff Scaletty’s claims are moot. His local election authority now acknowledges his right to vote. It has issued him a voter identification card and notified him that he may now vote. There is no reasonable basis to believe that there is any likelihood that any public official will attempt to interfere with his ability to vote. His claims in this case should thus have been dismissed as moot. Plaintiff MOPAS asserts associational standing. To have associational standing, the entity asserting it must identify at least one of its individual constituents who has standing to bring the claims asserted. The current complaint in this case does not identify any individual MOPAS constituent who retains standing to pursue the claims
22

on his or her own behalf. Thus, MOPAS lacks standing and should have been dismissed from this case.
Even if this Court were to reach the merits of this case, the judgment in favor of the state official defendants should also be affirmed because Missouri’s prohibition on voting by persons adjudged fully incapacitated is consistent with both the United States Constitution and federal law.
States have broad authority to establish their own voter qualifications in our federal system. In order to override this State authority, federal statutes must state, with unmistakable clarity, a Congressional intent to change the normal constitutional balance between the states and the federal government. Neither the Americans with Disabilities Act nor the Rehabilitation Act demonstrate an unmistakable Congressional intent that they were meant to impact a State’s regulation of voting qualifications.
Missouri’s prohibition on voting by persons adjudged fully incapacitated is also consistent with the equal protection and due process clauses of the United States Constitution. This prohibition passes the Burdick balancing test (established in Burdick v. Takushi, 112 S. Ct. 2059, 2063 (1992)), applicable to assessments of state voting regulations, because it advances Missouri’s important interest in assuring an electorate composed of persons who retain at least some minimal capacity to function
23

on their own in society without striking from the voting rolls persons who do retain the capacity to vote.
Missouri law does not prohibit persons who have the capacity to vote from voting. Missouri provides a procedure for determining capacity that complies with procedural due process and that requires individualized determinations of the capacity of the persons going through the proceedings. To whatever extent this procedure may not be appropriately implemented in particular cases, the remedy is an appeal of the capacity determination, not the striking of the prohibition on voting by persons adjudged fully incapacitated.
24

Standard of Review The plaintiffs-appellants have appealed to obtain review of the grant of summary judgment in favor of defendants-appellees. The grant of summary judgment is reviewed de novo. Tindle v. Caudell, 56 F.3d 966, 969 (8th Cir. 1995). A grant of summary judgment is proper only if there is no genuine issue of material fact, and the movant is entitled to judgment as a matter of law. Id.; see also Fed. R. Civ. P. 56(c). While a defendant who moves for summary judgment has the burden of showing that there is no genuine issue of fact for trial, Anderson v. Liberty Lobby, Inc., 106 S. Ct. 2505, 2514 (1986), a nonmoving party may not rest upon mere denials or allegations in the pleadings, but must set forth specific facts sufficient to raise a genuine issue for trial. Tindle, 56 F.3d at 969 (citing Celotex Corp. v. Catrett, 106 S. Ct. 2548, 2553 (1986)).
25

Argument I.
Missouri’s Secretary of State and Attorney General should have been dismissed as parties because neither state official has a role in the enforcement of the constitutional and statutory provisions at issue here.
Plaintiffs complain that Missouri’s Secretary of State and Attorney General prevent persons adjudged fully incapacitated from voting. These Officers, however, are not the public officers responsible for registration of voters and the operation of elections. Those responsibilities are vested in the local election authorities. § 115.023, RSMo (local election authorities to conduct all public elections within their jurisdictions); § 115.141, RSMo (local election authorities to supervise registration of voters within their jurisdictions). Because neither defendant has authority to provide the relief sought (right to register as voters and right to cast ballots in elections), this case should be dismissed due to defendants’ immunity from suit under the Eleventh Amendment. See Ex Parte Young, 28 S. Ct. 441, 453 (1908) (“In making an officer of the state a party defendant in a suit to enjoin the enforcement of an act alleged to be unconstitutional, it is plain that such officer must have some connection with the enforcement of the act, or else it is merely making [the officer] a party as a representative of the state, and thereby attempting to make the
26

state a party”); Reproductive Health Services of Planned Parenthood of the St. Louis Region, Inc., v. Nixon, 428 F.3d 1139, 1145 (8th Cir. 2005).
That a state official has “the general authority and responsibility to see that all of the laws of the state be faithfully executed” is not enough for a valid claim for injunctive relief to be made against him or her; the state official must have a “particular duty to enforce the statute in question and a demonstrated willingness to exercise that duty.” Okpalobi v. Foster, 244 F.3d 405, 416 (5th Cir. 2001) (en banc); accord Children’s Healthcare is a Legal Duty, Inc. v. Deters, 92 F.3d 1412, 1416-17 (6th Cir. 1996) (holding that a claim against Attorney General with no enforcement responsibility was barred by Eleventh Amendment, Ex Parte Young notwithstanding), cert. denied, 117 S. Ct. 1082 (1997). Further, the general authority of Missouri’s Attorney General to appear and be heard in cases in which the state’s interests are involved, § 27.060, RSMo, including appearances to defend the constitutionality of state statutes, does not constitute enforcement of any statute in question. Deters, 92 F.3d at 1416; Mendez v. Heller, 530 F.2d 457, 460 (2d Cir.1976).
Because neither state official defendant has a connection to the enforcement of the constitutional and statutory provisions at issue here, they are not proper parties to the suit and should have been dismissed as parties.
27

II. Plaintiff Scaletty’s claims are moot and should be dismissed because the local election authority acknowledges his right to vote and there is no reasonable basis to believe that there is any likelihood that any public official will attempt to interfere with his voting rights. As the district court concluded, plaintiff Scaletty’s claims in this case were moot. App. 624. Regardless of whether at some time Mr. Scaletty was prevented from voting, he is now registered to vote and has been notified that he may now vote. App. 454-65. Because no controversy remains regarding whether Mr. Scaletty may vote, his claims here, which are only for declaratory and injunctive relief, are moot. Preiser v. Newkirk, 95 S. Ct. 2330, 2334 (1975) (claim for declaratory relief becomes moot when challenged deprivation is over and there is no reasonable expectation that it will be repeated); Forest Park II v. Hadley, 408 F.3d 1052, 1060 (8th Cir. 2005) (claim for injunctive relief becomes moot when issues presented are no longer alive). Mr. Scaletty cannot overcome the mootness of his claims with an assertion that he has a reasonable concern that he will in the future be deprived of the right to vote. In order to make such a showing sufficient to maintain his claims here, he would have to show not only a reasonable likelihood that proceedings to modify his guardianship will be instituted, but that such proceedings would result in a judgment of full
28

incapacity and that, as a result, defendants would bar him from voting. It is impossible to predict whether and when any individual or agency might in the future seek to obtain a modification of Mr. Scaletty’s guardianship. Moreover, if such proceedings were to be instituted, Mr. Scaletty would have an attorney or guardian ad litem and would have the opportunity to present evidence and arguments on the issue of his voting competency. In fact, his voting rights were retained when he was adjudicated incapacitated years before this suit was filed. App. 454-56. There simply is no evidence of a real or immediate threat of injury to Mr. Scaletty and any claim of future injury is speculative in nature. Such an injury is too remote to satisfy the requirements of standing. See City of Los Angeles v. Lyons, 103 S. Ct. 1660, 1667 (1983).
Although concluding that Mr. Scaletty’s claims were moot here, the district court further concluded that it retained jurisdiction to consider the merits of his claims because the cause of the mootness was that the “Defendants have voluntarily ceased the challenged conduct.” App. 624-25. Focusing on the possibility that the decision to issue him a voter identification card and acknowledgment of his right to vote could be reversed rather than on the process of the a probate court reevaluating its decision explicitly preserving his right to vote, the court (App. 624-25) relied on Buckhannon Bd. & Care Home, Inc. v. West Virginia Dep’t of Health & Human Resources, 121 S. Ct. 1835, 1842-43 (2001), in which the Supreme Court stated: "It is well settled
29

that a defendant's voluntary cessation of a challenged practice does not deprive a federal court of its power to determine the legality of the practice unless it is absolutely clear that the allegedly wrongful behavior could not reasonably be expected to recur." (Quotations omitted and emphasis supplied by the district court.)
Buckhannon, however, is inapplicable here because it is not the acts of the defendant state officials that have, first, informed Mr. Scaletty that he could not vote and, second, allowed him to register and permitted him to vote. Rather, these actions were taken by the local election authority. App. 454-60. The state defendants have never interfered with Mr. Scaletty’s attempts to vote. Moreover, there is no indication that the local election authority’s action was the result of anything other than a failure to realize that Mr. Scaletty’s order of incapacity reserved his right to vote. Its actions do not bear any hallmarks of a change in legal interpretation that might possibly change again as the election authority’s membership changes.
Because Mr. Scaletty may now vote and there is no reasonable basis to believe that there is any likelihood that any public official will attempt to interfere with his voting rights, his claims have become moot and should be dismissed. See Murphy v. Hunt, 102 S. Ct. 1181, 1183 (1982) (claims become moot when parties no longer have a legally cognizable interest in the outcome).
30

III. Plaintiff MOPAS lacks associational standing to purse the claims raised in this action because associational standing requires the complaint to identify an individual constituent of the organization who has individual standing to bring the claims raised and the complaint in this case does not identify any individual MOPAS constituent who has viable individual claims. MOPAS admits that it does not bring this case to remedy any injury to itself and thereby disclaims direct standing to pursue the claims directly for itself. App. 520. Rather MOPAS asserts associational standing. App. 520. But MOPAS cannot establish associational standing in this case because the claims of the only individual plaintiff remaining in this suit are, as discussed in Point II, moot and should be dismissed. In order to have associational standing, MOPAS must, among other requirements, “include at least one member with standing to present, in his or her own right, the claim (or the type of claim) pleaded by the association.” United Food and Commercial Workers Union Local 751 v. Brown Group, Inc., 116 S. Ct. 1529, 1535 (1996). And not only must the organization include a member with individual standing, the allegations of its complaint must identify such a member. Pennsylvania Protection & Advocacy, Inc. v. Houston, 1136 F. Supp. 2d 353, 365-66 (E.D. Pa.
31

2001); Tennessee Protection & Advocacy, Inc. v. Board of Educ., 24 F. Supp. 2d 808, 816 (M.D. Tenn. 1998).
The amended complaint here does identify three individuals allegedly subject to improper interference with their right to vote App. 170-73. But the claims of two of these individuals, Steven M. Prye and Patrick W. Sharp, were voluntarily dismissed. App. 247, 250. The claims of the third individual are moot and should have been dismissed. See Point II. Lacking any individual constituent of MOPAS with individually cognizable claims, MOPAS lacks any standing to proceed on the claims in this case. For this reason, these claims should be dismissed.
32

IV. Missouri’s prohibition on voting by persons adjudged fully incapacitated is consistent with the Americans with Disabilities Act and the Rehabilitation Act because Congress, in these Acts, did not make unmistakably clear its intent that they were meant to restrict the broad constitutional power of the States to determine voter qualifications. Even if these Acts are construed to constrain this state power, Missouri’s prohibition complies with the Acts by providing an individualized assessment of the capacity of persons undergoing guardianship proceedings. The States have broad authority to determine voter qualifications. The States are authorized to create qualifications for electors in federal elections based on the clear language of: Article I, § 2, cl. 1, (“the electors in each state shall have the qualifications requisite for electors of the most numerous branch of the state legislature”); Article II, § 1, cl. 2, (“[e]ach state shall appoint, in such manner as the legislature thereof may direct, a number of electors”); and Amend. XVII, cl. 1, (“[t]he electors in each state shall have the qualifications requisite for electors of the most numerous branch of the state legislatures.”). Congress may, however, enact legislation to control the qualifications of electors in federal elections. Oregon v. Mitchell, 91 S. Ct. 260, 267-68 (1970); Article I, § 4, cl. 1 (“[t]he times, places and
33

manner of holding elections for senators and representatives shall be prescribed in each state by the legislature thereof; but the Congress may at any time, by law, make or alter such regulations . . . .”). But, unless Congress has enacted such legislation, or specific Constitutional provisions are violated, state laws control elector qualifications for federal offices and govern the time, place, and manner of conducting federal elections.
In contrast to Congress’s authority to enact legislation governing federal offices, Congress’ authority to enact legislation governing the qualifications for electors for state offices is much more limited. Mitchell, 91 S. Ct. at 265 (“It is obvious that the whole Constitution reserves to the States the power to set voter qualifications in state and local elections except to the limited extent that the people through constitutional amendments have specifically narrowed the powers of the states.”) (emphasis added). See also Gregory v. Ashcroft, 111 S. Ct. 2395, 2400 (1991) (noting that establishing qualifications for state judges “is a decision of the most fundamental sort for a sovereign entity”); Sugarman v. Dougall, 93 S. Ct. 2842, 2850-51 (1973) (observing that states retain the power and responsibility to regulate their elections, including determining the qualifications of voters).
Congress’s limited authority to regulate state elections is derived from the Civil War Amendments and their various enforcement sections. Congress’s power is limited, however, and is not intended to “strip the states of their power, carefully
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preserved in the original Constitution, to govern themselves.” Mitchell, 91 S. Ct. at 266. The Court has upheld various examples of voting requirement and qualification legislation, enacted by Congress, that validly established requirements applicable to state elections. In Katzenbach v. Morgan, 86 S. Ct. 1717 (1966), a federal statute outlawed New York’s requirement of literacy in English as a prerequisite to voting. The statute applied to all elections, both state and federal. The statute was upheld by the Supreme Court. See also South Carolina v. Katzenbach, 86 S. Ct. 803 (1966) (upholding a statutory ban on literacy tests). The rationale for upholding Congressional action in these cases was succinctly expressed by Justice Black in Mitchell: “Where Congress attempts to remedy racial discrimination under its enforcement powers, its authority is enhanced by the avowed intention of the framers of the Thirteenth, Fourteenth and Fifteenth Amendments.” Mitchell, 91 S. Ct. at 267. That situation is not replicated here.
The ADA and the Rehabilitation Act do not impact the authority of the States to determine voter qualifications. Before the Courts will find that a federal statute overrides with the constitutional authority of the states to determine their voters’ qualifications, the statute must make “unmistakably clear” that Congress intended to “upset the usual constitutional balance of federal and state powers.” See
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Gregory v. Ashcroft, 111 S. Ct. 2395, 2400-01 (1991). Neither the Americans with Disabilities Act (ADA) nor the Rehabilitation Act meet this standard.
The ADA, enacted in 1990, is not legislation establishing or even addressing the issue of competency requirements for electors voting in federal, state, or local elections. The ADA does not include “even a single provision specifically governing elections.” Lightbourn v. City of El Paso, 118 F.3d 421, 430 (5th Cir. 1997), cert. denied, 118 S. Ct. 700 (1998). To the contrary, the ADA never refers to elections. Id. The Act only mentions voting once, and that reference is in the “findings and purpose” section. Id. This section, 42 U.S.C. § 12101(a)(3), notes that “discrimination against individuals with disabilities persists in such critical areas as employment, housing, public accommodations, education, transportation, communications, education, institutionalization, health services, voting, and access to public services . . . . ” Id.
Similarly, the Rehabilitation Act, first enacted in 1973, does not refer to elections or voting. See 29 U.S.C. § 794; see also Waterstone, Constitutional and Statutory Voting Rights for People with Disabilities, 14 Stan. L. & Pol’y Rev. 353, 359 (2003) (noting that the ADA and section 504 of the Rehabilitation Act “are broad antidiscrimination statutes that do not specifically address voting.”).
By referring to elections only in passing or not at all, the ADA and the Rehabilitation Act cannot be said to demonstrate clear congressional intent to
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federalize the states’ voter qualification requirements for either federal or state elections.
By contrast, elsewhere Congress has expressly declined such a step. Under its authority to enact legislation to regulate the qualifications of voters in federal elections, Congress enacted the National Voter Registration Act in 1993 (after its enactment of the ADA and the Rehabilitation Act). One substantive goal of this Act is “to protect the integrity of the electoral process.” 42 U.S.C. § 1973gg(b)(3). The Act explicitly provides that a state may remove a voter’s name from the official list of eligible voters “as provided by State law, by reason of criminal conviction or mental incapacity.” 42 U.S.C. § 1973gg-6(a)(3)(B) (emphasis added). Thus, in federal legislation relating specifically to elector qualifications and voter registration, Congress made its intent clear: Congress reserved to the states the power to establish voter qualification provisions related to mental incapacity for voters in federal elections.
Neither the ADA nor the Rehabilitation Act makes unmistakably clear any Congressional intent to restrict the authority of athority of the States to regulate voting qualifications. The reliance by the district court and the plaintiffs on Pennsylvania Dept. of Corrections v. Yeskey, 118 S. Ct. 1952 (1998), in support of their argument that the ADA applies to state regulation of voting qualifications (App.
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528-30, 629) is misplaced. In Yeskey, a state argued that the ADA did not apply to its prisons because that statute did not make “unmistakably clear” a Congressional intent to “alter the usual constitutional balance between the States and the Federal Government” as required by Gregory v. Ashcroft, 111 S. Ct. 2395, 2400-01 (1991). 118 S. Ct. at 1954. The Supreme Court disagreed, ruling that the broad application of the ADA under 42 U.S.C. § 12132, to “the benefits of the services, programs, or activities of a public entity [defined to include “any department, agency, special purpose district, or other instrumentality of a State or States or local government,” 42 U.S.C. § 12131(1)(B)] did in fact render “unmistakably clear” a Congressional intent to cover prisons. 118 S. Ct. at 1954-55.
But, unlike the operation of a prison, which is very directly a state “program” which provides “benefits” and “services,” the regulation of voting qualifications is not a state program, benefit, or service. The regulation of voting qualifications is instead similar in nature to the qualifications of judges upheld in Gregory, against an Age Discrimination in Employment Act challenge. The regulation of voting qualifications, as is the regulation of qualifications of judges, is an element fundamentally related to a state’s sovereign powers. The operation of prisons, while an important and historical function of the states, is not a function that goes to the heart of representative government. The regulation of voter qualifications, in contrast, does go to this heart of a republic. Before Congress may alter the usual
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balance between state and federal government in such an area, it must make its intent to do so unmistakably clear. Gregory, 111 S. Ct. at 2401. The ADA does not demonstrate an unmistakable intent that it is meant to impact a state’s regulation of voting qualifications. Neither is the Rehabilitation Act.
Plaintiffs have also cited a handful of cases (App. 529-30) in which various district courts have applied the ADA or the Rehabilitation Act in circumstances somehow involving voting. Only in Doe v. Rowe, 156 F. Supp. 2d 35 (D. Me. 2001), however, did the court examine state regulation of voting qualifications. But, as discussed in this Point, the state official defendants directly challenge the correctness of the holding in Doe that the ADA and the Rehabilitation Act apply to voter qualifications. The other cases cited by plaintiffs are inapplicable because they relate to access to voting equipment or to polling places and not to the basic sovereign power of states to regulate the qualifications of voters.
Even if the ADA and the Rehabilitation Act are construed to apply to the qualifications of voters, neither affords the relief requested here. Title II of the ADA provides that “[n]o qualified individual with a disability shall, by reason of such disability, be excluded from participation in or be denied the benefits of the services, programs, or activities of a public entity, or be subjected to discrimination by any such entity.” 42 U.S.C. § 12132. Similarly, the Rehabilitation Act provides that
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“[n]o otherwise qualified handicapped individual in the United States . . . shall, solely by reason of his handicap, be excluded from the participation in, be denied the benefits of, or be subjected to discrimination under any program or activity receiving Federal financial assistance . . . .” 29 U.S.C. § 794(a). “The rights, procedures, and enforcement remedies under Title II are the same as under [§ 794].” Layton v. Elder, 143 F.3d 469, 472 (8th Cir. 1998). Therefore, to prevail on a violation of Title II or under § 794 of the Rehabilitation Act, plaintiffs must demonstrate that (1) they are qualified individuals with a disability; (2) they are being excluded from participation in, or being denied benefits of, services, programs, or activities provided by defendants or that they are otherwise discriminated against by defendants; and (3) such exclusion, denial of benefits, or discrimination is by reason of their disability. Id. Plaintiffs do not meet at least the first of these criteria.
The term “qualified individual with a disability” is defined by 42 U.S.C. § 12131(2) as “an individual with a disability who, with or without reasonable modifications to rules, policies, or practices, the removal of architectural, communication, or transportation barriers, or the provision of auxiliary aids and services, meets the essential eligibility requirements for the receipt of services or the participation in programs or activities provided by a public entity.” (Emphasis added.) Under the Rehabilitation Act, an “otherwise qualified individual” is one who is able to meet a program’s necessary or essential requirements in spite of his disability.
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Pottgen v. Missouri State High Sch. Activities Ass’n., 40 F.3d 926, 929 (8th Cir. 1994); see also Alexander v. Margolis, 921 F. Supp. 482, 488, 489 (W.D. Mich. 1995) (holding that a doctor who suffered from bipolar illness was not a “qualified individual” with a disability under the ADA because the state board of medicine was required to “discriminate on the basis of . . . a mental condition harmful to the public’s safety” and the board did not violate the ADA by refusing to reinstate the plaintiff’s medical license); Southeastern Community College v. Davis, 93 S. Ct. 2361, 2367 (1979) (upholding a college’s decision to deny admission to the school’s nursing program of an individual with a serious hearing disability because an “otherwise qualified person is one who is able to meet all of a program’s requirements in spite of [the person’s] handicap.”).
Turning to the present case, individuals will be adjudicated fully incapacitated and in need of a full guardian only in those cases where the individual meets the definition of an incapacitated person under § 475.010(9), RSMo. Before persons may be adjudged fully incapacitated, and thereby unqualified to vote, they are provided an individualized hearing to determine whether they lack all capacity to meet “essential requirements for food, clothing, shelter, safety and other care” § 475.075.9 and .10, RSMo.2 A person adjudged fully incapacitated following such a hearing is
2A more detailed discussion of the individualized nature of Missouri’s guardianship proceedings is provided in Point VI of this brief.
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not a “qualified individual with a disability” under the ADA or an “otherwise qualified individual” under the Rehabilitation Act because this adjudicated full mental incapacity renders the person unable to meet the “essential eligibility requirements” or the “necessary or essential requirements” that are part of Missouri’s electoral processes. If an individual is declared incompetent, he or she is not otherwise eligible to vote in Missouri because of failure to meet Missouri’s qualification for voting: the absence of adjudicated full mental incapacity.
Persons adjudged fully incapacitated lack this qualification because they have been adjudicated in need of a plenary guardian – meaning they cannot make decisions about the essentials of life (food, clothing, medical care, housing, safety, and property). An inability to make appropriate choices in these basic areas precludes a person subject to full guardianship from participation in Missouri’s electoral process – a process whose very foundation is citizens’ ability to make important and purposeful choices on candidates and issues that impact the lives of all Missouri citizens. Therefore, individuals who have been adjudicated fully incapacitated, due to mental incapacity, are not able to meet Missouri’s essential requirements for voting in spite of their disability. Thus, Missouri’s prohibition on voting by persons adjudged fully incapacitated is consistent with the ADA and the Rehabilitation Act.
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V. Missouri’s prohibition on voting by persons adjudged fully incapacitated is consistent with the equal protection and due process clauses of the United States Constitution because the prohibition advances to a high degree Missouri’s important interest in assuring an electorate composed of persons who retain at least some minimal capacity to function on their own in society. States have great authority in determining voter qualifications. According to the Supreme Court, the equal protection clause does not stand as a barrier to states’ authority to establish their own voter qualification requirements except in certain narrow circumstances. As Justice Black explained in a review of amendments to the Voting Rights Act, “[t]he establishment of voter age qualifications is a matter of legislative judgment which cannot be properly decided under the Equal Protection Clause.” Oregon v. Mitchell, 91 S. Ct. 260, 266 n.10 (1970) (Opinion of Black, J.) Further, the key question is “not who is denied equal protection, but, rather, which political body, state or federal, is empowered to fix the minimum age of voters.” Id. Justice Black’s opinion, announcing the judgment of the Court, stated that “[t]he generalities of the Equal Protection Clause of the Fourteenth Amendment were not designed or adopted to render the States impotent to set voter qualifications in
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elections for their own local officials and agents in the absence of some specific constitutional limitations.” 91 S. Ct. at 270.
Just as with age qualifications prior to the adoption of the 26th Amendment, the establishment of voter mental capacity qualifications for state elections is a matter for each state legislature to determine and, for federal elections, a matter for Congress pursuant to its power under the Elections Clause.
Furthermore, as the Supreme Court has recently recognized, “[w]hen the state legislature vests the right to vote for President in its people, the right to vote as the legislature has prescribed is fundamental[.]” Bush v. Gore, 121 S. Ct. 525, 529 (2000) (per curiam) (emphasis added). This statement further demonstrates the Court’s recognition of each state legislature’s critical role as it relates to the voting process, presumably including elector qualifications.
The Burdick balancing test. The Supreme Court in Burdick v. Takushi, 112 S. Ct. 2059, 2063 (1992), established a balancing test for determining the level of scrutiny to apply in assessing a challenge to state voter regulations. The Court recognized that election laws, including those that govern the qualifications of voters, invariably impose a burden on individual voters. Burdick, 112 S. Ct. at 2063. Thus, under this standard, when a court considers a challenge to a state election law, it should weigh:
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the character and magnitude of the asserted injury to the rights protected by the First and Fourteenth Amendments that the plaintiff seeks to vindicate against the precise interests put forward by the State as justifications for the burden imposed by its rule, taking into consideration the extent to which those interests make it necessary to burden the plaintiff’s rights. 112 S. Ct. at 2063 (internal citation and quotation omitted). When regulations impose “severe” restrictions on rights, the regulations must be “narrowly drawn to advance a state interest of compelling importance.” 112 S. Ct. at 2063, quoting Norman v. Reed, 112 S. Ct. 698, 705 (1992). If, however, the regulations impose only “‘reasonable, nondiscriminatory restrictions’ on the First and Fourteenth Amendment rights of voters, ‘the State’s important regulatory interests are generally sufficient to justify’ the restrictions.” Burdick, 112 S. Ct. at 2063, quoting Anderson v. Celebrezze, 103 S. Ct. 1564, 1569-70 (1983). Indeed, in Burdick, the Court concluded that the state’s “legitimate interests . . . [were] sufficient to outweigh the limited burden that the write-in voting ban impose[d] upon Hawaii’s voters.” Burdick, 112 S. Ct. at 2067 (emphasis added). The balancing test established in Burdick with regard to election and voter regulations has been found to apply to challenges under both the equal protection and the due process clauses. See Wit v. Berman, 306 F.3d 1256, 1259 (2d Cir. 2002) (applied to equal protection challenge), cert. denied, 123 S. Ct. 1574 (2003);
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Rockefeller v. Powers, 74 F.3d 1367, 1377 n.16 (2d Cir. 1995) (applies in both equal protection and due process cases), cert. denied, 116 S. Ct. 1703 (1996).
Here, the right plaintiffs seek to establish is a right by persons adjudged fully incapacitated to vote in the same manner as other individuals that have not been adjudged fully incapacitated. But an individual’s right to participate in the election process is not unfettered, as evidenced by the United States Supreme Court’s decisions upholding numerous restrictions on voting as a means of effectuating the state’s interest in its electoral processes. See Lassiter v. Northampton County Bd. of Elections, 79 S. Ct. 985, 990 (1959) (noting that “[r]esidence requirements, age, previous criminal record are obvious examples indicating factors which a State may take into consideration in determining the qualifications of voters”) (internal citation omitted); Richardson v. Ramirez, 94 S. Ct. 2655 (1974) (upholding against an equal protection challenge California’s constitutional provision and related statutes disenfranchising felons); Marston v. Lewis, 93 S. Ct. 1211 (1973) (per curiam) (upholding a state’s 50-day durational voter residency requirement). The Court has noted that “preservation of the integrity of the electoral process is a legitimate and valid state goal.” Rosario v. Rockefeller, 93 S. Ct. 1245, 1251 (1973). See also Eu v. San Francisco County Democratic Cent. Committee, 109 S. Ct. 1013, 1024 (1989) (“A State indisputably has a compelling interest in preserving the integrity of its election process”).
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In addition to the Supreme Court, other federal courts have upheld restrictions on voting when those restrictions supported the state’s interest in its electoral processes. See e.g., Nader v. Schaffer, 417 F. Supp. 837, 849 (D. Conn. 1976) (upholding, against an Equal Protection challenge, Connecticut’s requirement that only those voters who are members of a political party may vote in the party’s primary as “reasonably related to the accomplishment of legitimate state goals”), aff’d w/o op., 97 S. Ct. 516 (1976); Gaunt v. Brown, 341 F. Supp. 1187 (S.D. Ohio 1972) (upholding state’s prohibition against allowing 17 year- olds, who would be 18 years old by the time of the general election, from voting in primary election), aff’d w/o op., 93 S. Ct. 69 (1972). The character and magnitude of Missouri’s qualifications are not so injurious to plaintiffs’ rights as to be unreasonable and discriminatory when compared to other restrictions on voting that the courts have previously upheld. Cf. Burdick, 112 S. Ct. at 2063 (noting that reasonable and nondiscriminatory restrictions on voting can be upheld in light of important state interests).
Missouri’s important interests justify its prohibition on voting by persons adjudged fully incapacitated. Like these state interests that have previously been upheld, Missouri has an important, and indeed compelling, state interest in the administration of its elections, and assuring its citizenry that participants in those elections be able to understand the electoral choices they make by voting on a
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particular candidate or issue. Cf. Manhattan State Citizens Group, Inc. v. Bass, 524 F. Supp. 1270, 1274 (S.D.N.Y. 1981) (assuming, without deciding, that the state has a compelling interest in “assuring that electoral choices will be made by intelligent and interested voters.”). In Bass, the court noted that “[w]hen one is declared incompetent, the court has found that person unable to conduct any of his personal or business affairs. Presumably, this includes the ability to cast a rational vote.” Id.
Furthermore, Missouri’s constitutional requirement that a person be adjudicated fully incapacitated and under full guardianship before being excluded from voting “give[s] polling officials something tangible on which to decide whether a person [is] disqualified by reason of his mental condition.” New v. Corrough, 370 S.W.2d 323, 327 (Mo. 1963). Thus, Missouri provides an objective measure by which to judge whether an individual possesses the capacity required to vote in Missouri.
Missouri’s constitutional voter qualification provision is justified by Missouri’s important interest in limiting participation in elections to persons who have not been found by a court to need a guardian for every significant aspect of their life by reason of mental incapacity. It is significant to note the narrow nature of this restriction: it does not apply to the mentally ill generally, or to those who have been adjudicated partially incapacitated. It is also not necessarily permanent. Guardianships may be terminated, § 475.083, RSMo Supp. 2005, and individuals under guardianship are
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subject to annual review “for the purpose of determining whether the incapacity or disability may have ceased . . . .” § 475.082.1, RSMo.
The Missouri disqualification is not an aberrational consequence of adjudicated incapacity.3 Indeed, when a person is adjudicated in need of a guardianship or involuntarily committed to a mental institution, numerous collateral consequences flow from this determination. For example, federal law prohibits anyone who has been “adjudicated as a mental defective or who has been committed to a mental institution” from possessing a firearm. 18 U.S.C. § 922(g)(4); see also United States v. Dorsch, 363 F.3d 784 (8th Cir. 2004). A person whose property is under guardianship because of an adjudication of mental illness has “no capacity to incur contractual duties.” Restatement (Second) of Contracts § 13 (1981). In Missouri, individuals who have been “adjudicated to be incapacitated and who at the time of application have not been restored to partial capacity” are not eligible to receive drivers’ licences. § 302.060(5), RSMo.
The implications of plaintiffs’ argument are breathtaking. Take, for example, a citizen’s right to serve as a juror. See, e.g., Thompson v. Oklahoma, 108 S. Ct. 2687,
3In a recent study, it was determined that over forty other states have constitutional or statutory provisions establishing a voter qualification related to mental capacity. Doe v. Rowe, 156 F. Supp. 2d 35, 38 n.2 (2001), citing Schriner, et al., Democratic Dilemmas: Notes on the ADA and Voting Rights of People with Cognitive and Emotional Impairments, 21 Berkeley J. of Emp. & Lab. L. 437, 439, 456 tbl. 2 (2000).
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2701-02 (1988) (listing those states where the “[r]ight to serve on a jury” is limited based on age). Numerous states and the federal courts condition the right to serve as a juror on some degree of mental capacity. See, e.g., 28 U.S.C. § 1865(b)(4) (stating that individuals who are “incapable by reason of mental . . . infirmity, to render satisfactory jury service” or who cannot read, write, or understand English with a sufficient degree of proficiency are not qualified to serve as jurors in the district court”); § 494.425, RSMo Supp. 2005 (disqualifying from jury service those individuals “incapable of performing the duties of a juror because of a mental . . . illness or infirmity”). The logical implication of plaintiffs’ argument would require an individualized determination by federal and state courts of an individual’s capacity to serve as a juror – to fully comprehend the civil trial process – despite a previous adjudication of incapacity. This is unnecessary to satisfy the equal protection clause.
Similar to the collateral consequences that flow from a determination of incapacity, it is appropriate for Missouri to restrict qualified voters to those individuals who possess at least some abilities to make choices about their own affairs. It is more than merely reasonable for Missouri to presume that an individual who is under full guardianship lacks the mental capacity to make choices about how the affairs of government should be managed.
Furthermore, the state has important interests in preventing vote dilution and in preventing double voting. As the court recognized in Johnson v. Hood, 430 F.2d 610,
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613 (5th Cir. 1970), a state “has not only an interest in but also an obligation to provide orderly, honest elections. Measures reasonably calculated to this end, such as the prevention of double voting, are solely within the ambit of State control.” Id. at 613. Allowing individuals adjudicated fully incapacitated to vote could lead to double voting because these individuals would be particularly susceptible to influence by their guardians or any others with whom they have contact and it is these other individuals who realistically could be voting their own and the ward’s ballot.
Additionally, permitting persons who have been adjudicated fully mentally incompetent to vote would adversely impact the public’s perception of the dignity and efficacy of the democratic process. In Burson v. Freeman, 112 S. Ct. 1846, 1852 (1992), the Court explained that the State “indisputably has a compelling interest in preserving the integrity of its election process.” See also Eu, 109 S. Ct. at 1024. In fact, the lead opinion in Colorado Republican Fed. Campaign Comm. v. FEC, 116 S. Ct. 2309, 2313 (1996), unquestioned by the other opinions, characterized as “compelling” the government’s “interest in assuring the electoral system’s legitimacy, protecting it from the appearance and reality of corruption.” In various campaign finance cases the courts have opined that it is not merely those actions that actually threaten the legitimacy of the system that can be regulated; rather, in addition to the actual threat posed to the system by large campaign contributions, the “the impact of the appearance of corruption” was “[o]f almost equal concern.” Buckley v. Valeo, 96
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S. Ct. 612, 638 (1975) (per curiam). Indeed, “the avoidance of the appearance of improper influence ‘is also critical . . . if confidence in the system of representative Government is not to be eroded to a disastrous extent.’” 96 S. Ct. at 639, quoting United States Civil Serv. Comm’n v. National Assoc. of Letter Carriers, 93 S. Ct. 2880, 2890 (1973). To permit voting by persons who do not have the capacity to vote, as demonstrated by a judgment of full incapacity arrived at after an individualized review, would undermine both the actual and the perceived integrity of the electoral process.
Plaintiffs’ reliance, at pp. 46-47 of their brief, on Tennessee v. Lane, 124 S. Ct. 1978 (2004), as a Supreme Court rejection of voting prohibition applying to persons under full guardianships is misplaced. Lane concerned access to courts by the disabled and had nothing to do with an analysis of the validity of voting qualifications. The Court did make the isolated remark that Congress enacted the Americans with Disabilities Act against a back drop of unequal treatment in state services and programs and noted as an example states “categorically disqualifi[ng] ‘idiots’ from voting, without regard to individual capacity.” Id. at 1989 (quoting Cleburne v. Cleburne Living Center, Inc., 105 S. Ct. 3249, 3267 (1985) (Marshall, J., concurring in judgment in part and dissenting in part)). Not only did the Court not conduct any analysis on this point in Lane, but the reference is inapplicable given
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that, as shown in Point VI of this Brief, Missouri does give “regard to individual capacity” in its guardianship proceedings.
Plaintiffs also argue, at p. 45 of their brief (see also App. 686-87), that Missouri’s prohibition is underinclusive because some persons may be under full guardianships, while others with comparable mental impairments are not, due to family decisions to care for mentally impaired relatives within the confines of the family and not to seek formal appointment of guardians. Any underinclusiveness here, however, is not due to the state or its laws, but to the individual decisions of families. The fallacy of plaintiffs’ argument is evident from examining its logical consequences. If there is constitutional infirmity here, then, by extension, statutes creating criminal liability for murder (or other crimes) are also unconstitutional because they apply to persons arrested and prosecuted but not to persons who manage to avoid identification and arrest with the assistance of family members.
Adjudications of full mental incapacity demonstrate that the persons so adjudged do not possess the ability to function generally. Permitting someone who lacks such abilities to vote degrades the solemnity and integrity of the democratic process and will continue the erosion of the public’s confidence in the process. In light of current public dissatisfaction with the perceived integrity of the electoral system, our nation can little afford to allow those adjudicated fully incapacitated to vote.
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VI. Missouri law assures that persons who have the capacity to vote, however that assessment may appropriately be made, can vote by providing a procedure compliant with procedural due process through which individualized determinations are made with regard to the persons subject to competency proceedings. Even if voting prohibitions based on judgments of mental incapacity can be, in some circumstances, a violation of federal constitutional or statutory law, Missouri’s prohibition is not. Missouri law includes the key, required element: a forum for individualized determinations of capacity that provides appropriate procedural protections, including notice and full opportunity to be heard and present evidence on the relevant issues. Statutory provisions regarding capacity adjudications. Applications for appointment of a guardian may be filed under § 475.060, RSMo. The respondent is provided with a copy of the petition, notice of the time and place of the hearing, name and address of appointed counsel, and names and addresses of potential witnesses. § 475.075.2, RSMo. The respondent is also provided with a copy of his rights at the guardianship proceeding. Id. A lawyer is appointed to represent the interests of the respondent. § 475.075.3. The petitioner has the burden of proving incapacity or
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partial incapacity by clear and convincing evidence. § 475.075.7. The respondent has several rights specifically set out in § 475.075.8, including the rights to be present at the hearing, to present evidence, and to cross-examine adverse witnesses.
Following the hearing, courts are directed to find a person fully incapacitated, and to order full guardianship, only as a last resort. § 475.075.10. An adjudication of partial incapacity is preferred, if feasible. Id.
An adjudication of incapacity operates “to impose upon the ward . . . all legal disabilities provided by law, except to the extent specified in the order of adjudication . . . .” § 475.078.2, RSMo. Persons adjudicated incapacitated are presumed to be incompetent. § 475.078.3. In contrast, an adjudication of partial incapacity “does not operate to impose upon the ward . . . any legal disability provided by law except to the extent specified in the order of adjudication, provided that the court shall not impose upon the ward . . . any legal disability other than those which are consistent with the condition of the ward . . . .” § 475.078.1. “A person who has been adjudicated partially incapacitated . . . shall be presumed to be competent.” Id. Thus, a person adjudicated partially incapacitated may register and vote.
In addition to the proceeding in which a respondent may be found to be incapacitated, the court is to review the status of every ward under its jurisdiction at least once a year “for the purpose of determining whether the incapacity . . . may have ceased. § 475.082.1, RSMo. Moreover, the ward, his or her guardian, or any person
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acting on behalf of the ward may at any time petition the court to determine the ward restored to full or partial capacity. § 475.083.4, RSMo Supp. 2005. If the ward is not already represented by a lawyer, the court is required to appoint a lawyer to represent the ward in the proceedings. § 475.083.6.
Missouri statutes governing capacity proceedings provide due process. Contrary to plaintiffs’ charges, Missouri’s statutory procedures governing capacity determinations provide ample procedural protections to respondents.
Plaintiffs specifically contend that Missouri law does not provide notice to respondents in capacity hearings that a consequence of a judgment of full incapacity is the loss of the right to vote. Aplts’ Brf., at p. 50. But it is a settled legal principle that everyone is presumed to know the law, see Atkins v. Parker, 105 S. Ct. 2520, 2529 (1985), and Missouri law explicitly states that a person determined to be mentally incapacitated is disqualified from voting. Mo. Const. Art. VIII, § 2; § 115.133.2, RSMo Supp. 2005. Thus, respondents in capacity hearings, as well as the lawyers who are always appointed to act on their behalf, have notice that a judgment of full incapacity will result in the respondent losing his or her right to vote.
In a related assertion, plaintiffs argue that respondents in capacity proceedings do not receive notice of their right to present evidence concerning their capacity to vote. Aplts’ Brf., at p. 50. But these respondents plainly receive notice of their right
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to present evidence. § 475.075.2 and .8(3). And there is no right to notice of the right to present evidence as to specific issues – like the capacity to vote. Cf. Reaves v. Missouri Dep’t of Elem. & Sec. Educ., 422 F.3d 675, 682 (8th Cir. 2005) (applicant for funding not entitled to notice that hearing officer might review information not contained in denial letter in assessing propriety of the denial; statute governing the review process did not limit review to information or evidence contained in denial letter; applicant’s assumption that record was so restricted was unreasonable). Under plaintiffs’ logic, defendants would have a due process right to receive formal and explicit notice that they may present evidence at trial of affirmative defenses. But there is no such notice requirement. The availability of affirmative defenses is an option that defendants and their lawyers are on notice of based on existing law.
Even assuming due process did require provision of notice of the right to present evidence as to the capacity to vote, such notice is provided in Missouri from the combination of the plain constitutional and statutory statement of the consequence of adjudications of full incapacity with the express requirement that respondents in capacity proceedings receive notice of their right to present evidence.
Plaintiffs also contend that the statutory presumption established in § 475.078.3 that a person adjudged fully incapacitated is incompetent denies due process. Aplts’ Brf., at pp. 40-41, 49. But this presumption is made only after a person is adjudged
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fully incapacitated in a competence proceeding. The person receives his or her due process at that proceeding.
Assessment of capacity to vote in Missouri capacity proceedings. Plaintiffs also argue that Missouri capacity proceedings are inadequate because they do not permit a direct assessment of a person’s capacity to vote. Aplts’ Brf., at p. 41-42.4 Plaintiffs assert that competence to vote can be determined independently. They support this with the report and testimony of an expert, Dr. Paul S. Appelbaum. But Dr. Appelbaum’ testimony is not reliable under a Daubert analysis. App. 350-51, 643-46. He admits that no standard for assessing capacity to vote has been “crystallized” yet. App. 488 (Dep. p. 85). While the doctor has done valuable initial work in this area, he admits “there is no general agreement on where the line [between persons competent to vote and those not competent to vote] should be drawn.” App. 509. Dr. Appelbaum did not even use the voting competence assessment tool he developed in his research to make the assessments he provided in
4Plaintiffs do not, however, dispute that there are some persons who lack the capacity to vote. This is evident from their own expert’s testimony that there is a line beyond which persons are sufficiently mentally impaired that they are not competent to vote. App. 480 (Dep. p. 48). Thus, it cannot be plaintiffs’ position that all persons adjudged fully incapacitated have a right to vote. Given the admission that there are some individuals who are not competent to vote, it cannot be said that Missouri’s ban on voting by the fully incapacitated is, per se, constitutionally (or statutorily) infirm.
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this case. Supp. App. 3 (Dep. pp. 61-62).5 Dr. Appelbaum used a “modified version
of the standard approach” that is used in the assessment of general competency to
assess particularly the competence to vote of the persons he examined for this case.6
App. 487 (Dep. pp. 81-82). The doctor’s use of this “modified version of the
standard approach” does not establish that his evaluations of the competence to vote
are reliable, either in general or as to the particular individuals he has assessed for
purposes of this case. He did not identify anyone else has evaluated competence to
vote in this manner. App. 488 (Dep. p. 85). The doctor admitted he is aware of no
one else who has ever undertaken the task of assessing the capacity to vote as a
separate capacity. App. 488 (Dep. p. 85). Where no one else has engaged in work
5The Supplemental Appendix provided by the state official defendants along with this brief contains a page of Dr. Appelbaum’s deposition testimony inadvertently left out of the Joint Appendix. References to the identities and particular assessments of the individuals assessed have been redacted.
6As a part of his assessment under this “modified version of the standard approach,” Dr. Appelbaum considered whether the persons he evaluated had “the capacity to understand the nature and effect of voting, such that they [could] make an individual choice.” Supp. App. 3 (Dep. pp. 62-63). But a voting competency standard that would qualify anyone who could understand the elementary mechanical aspects of voting, and who had some understanding that the votes would be tabulated to determine the winner, would fail to screen out all but persons who have almost a complete inability to perceive reality at the most basic levels. The majority of children age 5 would be able to pass this test. Surely every middle school student voting in a student council election would pass. If this is what plaintiffs have in mind, they are really seeking a near complete elimination of mental capacity – and ultimately age – voter qualifications.
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relating to determining competence to vote, there is little or no basis for accepting Dr. Appelbaum’s voting competence assessments as reliable. See United States v. Mitchell, 365 F.3d 215, 235 (3d Cir. 2004) (setting out factors to consider in assessing reliability of expert testimony), cert. denied, 125 S. Ct. 446 (2004).
In lieu of the ability to assess competence to vote independently, the Missouri statutory standard for determining when a guardianship should be full and when it should be partial, must serve as the closest approximation that is legally practicable. The standard for partial incapacity is “inability by reason of any physical or mental condition to receive and evaluate information or to communicate decisions to the extent that he lacks capacity to meet, in part, essential requirements for food, clothing, shelter, safety, or other care without court-ordered assistance. § 475.010(14), RSMo (emphasis added). These personal care abilities are abilities that can be assessed, and regularly are assessed, within the current state of the science of psychology. See App. 485 (Dep. pp. 74-75). Abilities related to self-care and dayto-day functioning are “reasoning analogues to what one would do to participate in the voting process. That is taking in information, receiving it, evaluating it and communicating the decision back to those outside.” App. 882-83 (Dep. pp. 36-37); see also App. 902-04.7 Given this analogy between reasoning directed toward self-
7Plaintiffs’ assertion in the court below, App. 683, that defendants’ expert, Dr. Harry, acknowledges that use of full guardianship as an eligibility requirement on
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care and the reasoning directed toward voting, a person with competence to vote will also be able to show that he or she has an ability, in part, to meet some essential requirement for food, clothing, shelter, safety, or other care. Such a showing (or the inability of an applicant for guardianship to establish the contrary in an initial guardianship proceeding) would result in modification of a full guardianship to a partial guardianship (or the initial establishment of a partial guardianship instead of a full guardianship) which would result in the ward maintaining the right to vote under Missouri law. § 475.078.1, RSMo.
Although there is disagreement in this case about whether there is a valid test to determine competence to vote as an independent matter, any dispute on this issue is immaterial. The determination of whether a person has the competence to vote, either by some test to determine that competence directly, or by proxy through an assessment of general personal care abilities, is an issue for local probate courts in determining individual guardianship cases. If plaintiffs are correct that there is a valid scientific method to determine competence to vote, then that is the standard
voting is unnecessary misconstrues his testimony. Dr. Harry was asked: “Do you think they [the individuals evaluated by Dr. Appelbaum] lack the capacity to vote because they are under guardianship?” Dr. Harry responded, “No.” App. 882 (Dep. pp. 35-36). This response is simply an acknowledgment that some persons under full guardianships may be able to establish some retained capacity in review proceedings, obtain a modification of their guardianships to limited guardianships, and thereby be able to return to the voting rolls.
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individuals going through initial guardianship proceedings or seeking review of existing guardianships should present to the probate court hearing the case. The probate court can then determine whether the standard is met and, if so, create or modify the guardianship accordingly. If the probate court declines to determine competence to vote as a separate matter, then that judgment can be appealed. While the standard for determining competence to vote is a proper issue for consideration in these individual probate proceedings, it has no impact on whether Missouri’s prohibition on voting by the fully incapacitated is consistent with federal law.
The point here is that, if plaintiffs are correct about the ability to assess competence to vote independently, this can be shown in probate courts in guardianship proceedings or review proceedings. If the probate court determines that the person does have competence to vote, that right will be reserved in its judgment. Even if that judgment makes the person subject to a guardian for all other purposes, the judgment is still, by definition, one of partial incapacity (due to its reservation of the right to vote), thereby taking the person outside the coverage of Missouri’s voting ban on the fully incapacitated. The record here shows that local probate courts have in fact assessed the competence to vote as a separate capacity. App. 455-56. If other probate courts have not, the remedy is not a challenge to Missouri’s Constitution and statutes, but appeals of those determinations.
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And, if the state official defendants are correct that competence to vote can, at best, only be determined by a general assessment of a person’s ability to care for his or her own personal care needs, the establishment of even some minimal level of independence in regard to such personal care needs will also result in a judgment of partial incapacity only, which also takes the person outside the voting ban.
Either way, the voting ban only applies to persons who, under whichever standard is appropriate, are determined not to have any ability to function independently. Because persons in Missouri have a forum in which their competence to vote can be assessed, the state’s voting ban applicable to the fully incapacitated (which plaintiffs must admit is appropriate for those persons who actually are fully incapacitated given their expert’s agreement that some persons do lack competence to vote) does not violate any constitutional or statutory rights of plaintiffs.
Plaintiffs’ lawsuit asks the question of whether Missouri’s ban on voting by the fully incapacitated is valid under federal law, when it should instead be asking the question of whether voting competence is being correctly evaluated in local probate courts. And the defendants named in this suit are not the correct parties in a suit asking that question because the defendants do not make the determination as to the impact on voting rights of judgments of incapacity. App. 429-30 (Dep. pp. 20-22).
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Missouri capacity standard allows assessment of capacity to vote. Plaintiffs argue that the Missouri standards relating to capacity do not permit a probate court to evaluate the capacity to vote directly because the standard is framed to address self-care needs, not the capacity to vote as an independent capacity. Aplts’ Brf., at pp. 22, 40, 44-45. The Missouri standard for partial capacity, which, if met, would permit the ward to vote, is “inability by reason of any physical or mental condition to receive and evaluate information or to communicate decisions to the extent that he lacks capacity to meet, in part, essential requirements for food, clothing, shelter, safety, or other care without court-ordered assistance.” § 475.010(14), RSMo (emphasis added).
If defendants are correct that the capacity to vote cannot be validly assessed as an independent capacity, then this standard does expressly permit the assessment of those capacities that defendants contend provide as close an approximation of voting capacity as is legally practicable. But if plaintiffs are correct that voting capacity may be directly assessed, this Missouri standard will also permit such an individual assessment of voting capacity, and, in addition, permit a judgment of incapacity that finds the ward’s only capacity it the capacity to vote. A person who can establish the capacity to vote, and only that capacity, has established that he or she maintains the ability to meet, in part, the essential requirements for “other care,” because voting is
64

one means, albeit indirect, to meet a person’s need for care. After all, the purpose of voting is generally to establish a government that meets what the voter believes to be the needs of the populace, including the needs of the voter him or herself. Therefore, Missouri’s standards for incapacity and partial incapacity are drawn in a manner that permits individual assessment of voting capacity, and maintenance of the right to vote, regardless of whether voting capacity can be assessed separately, or must be assessed indirectly.
Mr. Scaletty’s circumstances are a good illustration. In his case, it appears from the record that the probate court did assess the capacity to vote independently (without any objection noted in the order). See App. 455-56. Thus, Mr. Scaletty maintained his right to vote as shown by his receipt of his voter identification card from his election authority together with its determination that he may vote. App. 458-60. The earlier refusal to permit him to vote, also the decision of the local election authority, was apparently based on a misunderstanding as to the nature of his judgment of incapacity.
The evidence presented by plaintiffs that the capacity to vote was not raised in the guardianship proceedings of other individuals adjudged fully incapacitated does not demonstrate any deficiency in Missouri law, but only a failure of these wards to raise this issue or an understanding by the persons involved in the proceedings that, as defendants argue, voting capacity cannot be evaluated by itself.
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The ability of persons going through capacity proceedings to address their capacity to vote in those proceedings (or, if already subject to a judgment of full incapacity, to address the issue in review proceedings), contradicts plaintiffs’ position in this case. By providing a means to establish capacity to vote, either directly or by reference to self-care and personal safety abilities, Missouri law does not permit the removal of the right to vote of incapacitated persons without an individual assessment of their abilities. If persons subject to guardianship proceedings wish to retain the capacity to vote, they have a forum for review of that capacity.
Summary. Because neither the Missouri Constitution nor Missouri law prevents persons with the competence to vote from voting, the state official defendants were entitled to judgment as a matter of law and the district court correctly granted summary judgment in their favor.
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Conclusion As shown above, plaintiffs-appellants Scaletty and MOPAS presented no evidence that raised any genuine issue of material fact that would overcome the defendant-appellee state officials’ entitlement to judgment as a matter of law. Therefore, the state officials urge this Court to affirm the district court’s grant of summary judgment in their favor.
Respectfully submitted, JEREMIAH W. (JAY) NIXON Attorney General
MICHAEL PRITCHETT Missouri Bar No. 33848 Assistant Attorney General P.O. Box 899 Jefferson City, MO 65102 Telephone: (573) 751-3321 Fax No.: (573) 751-9456 ATTORNEYS FOR APPELLEES
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Certificate of Service and Compliance I hereby certify that this brief was prepared using Word Perfect 9.0, in 14-point

proportionally spaced typeface print size, and that the diskette submitted with the

instant brief has been scanned for viruses and is virus-free. I further certify that the

brief contains 12,334 words, excluding the parts of the brief exempted by Fed. R.

App. P. 32(a)(7)(B)(iii).

A 3½-inch diskette containing the full text of this brief in PDF format, with a

label reflecting the case name and docket number, has been provided to the Clerk and

to each party separately represented by counsel. I certify that the diskette has been

scanned for viruses and is virus free. I further certify that two true and correct copies

of this brief were mailed, postage prepaid, this _____ day of November, 2006, to:

James M. Kirkland Sonnenschein Nath & Rosenthal LLP 4520 Main Street Kansas City, MO 64111
Michael H. Finkelstein David E. Hale Mo. Protection & Advocacy Services 925 South Country Club Drive Jefferson City, MO 65109

Samuel R. Bagenstos One Brookings Drive, Box 1120 St. Louis, MO 63130
Ira Abraham Burnim Jennifer Mathis Alison N. Barkoff Bazelon Center for Mental Health Law 1101 15th Street NW, Suite 1212 Washington, D.C. 20005

Anthony E. Rothert ACLU of Eastern Missouri 4557 Laclede Avenue St. Louis, MO 63108
Neil Bradley ACLU National Voting Rights Project 2600 Marquis One Tower 245 Peachtree Center Avenue Atlanta, GA 30303

Wan J. Kim David K. Flynn Sarah E. Harrington United States Department of Justice Civil Rights Division, Appellate Section Ben Franklin Station P.O. Box 14403 Washington, D.C. 20044-4403

Assistant Attorney General 68

 
 499 F.3d 803 (2007)
MISSOURI PROTECTION AND ADVOCACY SERVICES, INC., et al., Plaintiffs-Appellants, v.
Robin CARNAHAN, in her official capacity as Secretary of State of the State of Missouri; Jeremiah Nixon, in his official capacity as Attorney General of the State of Missouri, Defendants-Appellees.
No. 06-3014.
United States Court of Appeals, Eighth Circuit.
Submitted February 12, 2007. Filed: August 23, 2007.
Rehearing and Rehearing En Banc Denied October 18, 2007.[*]
8045 *804 *805 Samuel R. Bagenstos, argued, St. Louis, MO (James M. Kirkland, Kansas City, MO; Anthony E. Rothert, St. Louis, MO; Neil Bradley, Atlanta, GA; James G. Felakos, New York, NY; Barrett J. Vahle, Kansas City, MO; Ira Burnim, Jennifer Mathis and Alison N. Barkoff, Washington, DC; and Michael H. Finkelstein and David Hale, Jefferson City, MO, on the brief), for appellant.
Michael Eugene Cook Pritchett, argued, Assistant Attorney General, Jefferson City, MO.
Before LOKEN, Chief Judge, O'CONNOR, Associate Justice (Ret.),[*] and GRUENDER, Circuit Judge.
LOKEN, Chief Judge.
This is a lawsuit by three Missouri residents and a non-profit advocacy organization, Missouri Protection and Advocacy Services, Inc. (MOPAS), who allege that Missouri law violates the Equal Protection Clause; Title II of the Americans with Disabilities Act of 1990, 42 U.S.C. §§ 12131-12165; and section 504 of the Rehabilitation Act of 1973, 29 U.S.C. § 794 by disqualifying persons under court-ordered guardianship from voting. Plaintiffs seek injunctive and declaratory relief. Defendants are the Missouri Secretary of State, Robin Carnahan, and the Missouri Attorney General, Jeremiah Nixon, who are sued only in their official capacities. The claims of two individual plaintiffs were dismissed without prejudice at their request. The district court[1] denied MOPAS and the third individual, Bob Scaletty, relief on the merits after rejecting defendants' threshold arguments that the case is moot, that plaintiffs lack standing, and that these State officers are not proper defendants. MOPAS and Scaletty appeal. We affirm though on somewhat different grounds.
I. The Missouri Laws at Issue
Article VIII, § 2, of the Missouri Constitution, as amended in 1958, broadly grants the right to vote to "[a]ll citizens of the United States . . . over the age of eighteen who are residents of this state" but then provides that "no person who has a guardian . . . by reason of mental incapacity, appointed by a court of competent jurisdiction . . . 806 shall be entitled to vote." This prohibition has a long history.[2] The Missouri *806 Constitution of 1875 barred from voting persons kept at poorhouses and other asylums at public expense. Art. 8, § 2. The Constitution of 1945 provided that "no idiot, no insane person and no person while kept in any poorhouse at public expense . . . shall be entitled to vote." Art. VIII, § 2. The 1958 amendment tying the prohibition to court-ordered guardianship was intended "to give polling officials something tangible on which to decide whether a person was disqualified by reason of his mental condition." New v. Corrough, 370 S.W.2d 323, 327 (Mo.1963).
The Missouri election laws implement Article VIII, § 2, by providing, "No person who is adjudged incapacitated shall be entitled to register or vote." Mo. Rev.Stat. § 115.133.2. The parties in this case do not argue that § 115.133.2 disqualifies more adults from voting than the prohibition set forth in Article VIII, § 2. Such a contention

would conflict with well-established principles 0907 that Missouri's election laws "must be liberally construed in aid of the right of suffrage," Nance v. Kearbey, 251 Mo. 374, 158 S.W. 629, 631 (Mo.banc 1913); that the right of citizens who possess the enumerated constitutional qualifications to vote "may be regulated by statute although not lightly denied or abrogated," State ex rel. McClellan v. Kirkpatrick, 504 S.W.2d 83, 88 (Mo.banc 1974); and that "voting rights are an area where our state constitution provides greater protection than its federal counterpart," Weinschenk v. State of Missouri, 203 S.W.3d 201, 212 (Mo. banc 2006). Thus, while no Missouri appellate court has addressed the question, we are confident that the Supreme Court of Missouri would construe the term "adjudged incapacitated" in § 115.133.2 as having the same meaning as the term "has a guardian [appointed] by reason of mental incapacity" in Article VIII, § 2.
The Missouri Probate Code authorizes the appropriate probate court[3] to appoint a qualified guardian for an adult if a hearing has established "by clear and convincing evidence that the person for whom a guardian is sought is incapacitated as defined in this law." Mo. Rev. Stat § 475.079.1. An "incapacitated person" is defined as:
one who is unable by reason of any physical or mental condition to receive and evaluate information or to communicate decisions to such an extent that he lacks capacity to meet essential requirements for food, clothing, shelter, safety or other care such that serious physical injury, illness, or disease is likely to occur. Mo.Rev.Stat. § 475.010(9).
The Probate Code defines a "partially incapacitated person" as one who "lacks capacity to meet, in part," these essential requirements. § 475.010(14) (emphasis added). The distinction is significant. An adjudication of partial incapacity imposes only those legal disabilities "specified in the order of adjudication," § 475.078.1, whereas an adjudication of full incapacity imposes "all legal disabilities provided by law, except to the extent specified in the order of adjudication," § 475.078.2.[4] In either case, the probate court must apply a "least restrictive environment" principle, imposing "only such restraint as is necessary to prevent [the ward] from injuring himself and others and to provide him with such care, habilitation and treatment as are appropriate for him considering 807 his *807 physical and mental condition and financial means." § 475.010(10); see § 475.075.10. If the court finds the person partially incapacitated, it "shall appoint a limited guardian" and "shall impose only such legal disabilities and restraints on personal liberty as are necessary to promote and protect the well-being of the individual." § 475.080.1.
II. An Eleventh Amendment Issue
At the outset, defendants argue that the Missouri Secretary of State and Attorney General have no real connection with the enforcement of Missouri's laws regarding the loss of voting rights by persons under guardianship and therefore this suit is barred by the Eleventh Amendment. Like the district court, we disagree.
A State's Eleventh Amendment immunity "does not bar a suit against a state official to enjoin enforcement of an allegedly unconstitutional statute, provided that such officer [has] some connection with the enforcement of the act." Reprod. Health Servs. of Planned Parenthood of the St. Louis Region, Inc. v. Nixon, 428 F.3d 1139, 1145 (8th Cir.2005) (quotation omitted). Though broad authority to register voters and to administer voting and elections is delegated to local "election authorities" 0907the county clerk or the local board of election commissioners0907the Secretary of State is "the chief state election official responsible for overseeing of the voter registration process." See Mo.Rev.Stat. §§ 115.015, 115.141, 115.023.1, 115.155, 115.160.3. Moreover, § 115.195.3 obligates the Secretary of State to send local election authorities the names of persons who are adjudged incapacitated. As we will explain, Bob Scaletty was prevented from voting in the 2004 election by an error that may well have stemmed from his inclusion on a list of persons under guardianship that did not note the preservation of his right to vote. Finally, Missouri statutes appoint the Secretary of State as the "chief state election official" to administer the federal Help America Vote Act of 2002 and the National Voter Registration Act of 1993. See Mo.Rev.Stat. § 28.035, § 115.136.
The Attorney General has statutory authority to represent the state in both criminal and civil cases. See Mo.Rev.Stat. § 56.060.1; § 27.030; § 27.060. Persons who knowingly attempt to vote when they are

ineligible0907which presumably would include persons under guardianship due to mental incapacity 0907can be prosecuted for committing a class one election offense. See Mo.Rev.Stat. § 115.631(2).
The summary judgment record reflects considerable uncertainty, inconsistency, and apparent confusion among local guardians and election officials concerning the proper interpretation of the Missouri laws at issue. In these circumstances, we conclude that the Secretary of State and the Attorney General were potentially proper parties defendant for the injunctive relief sought had plaintiffs prevailed on the merits.
Accordingly, the Ex parte Young exception to Eleventh Amendment immunity applies. See Reprod. Health Servs., 428 F.3d at 1145.
III. Equal Protection Claims
In the last fifty years, the Supreme Court has considered many cases involving various aspects of the right to vote. "[S]ince the right to exercise the franchise in a free and unimpaired manner is preservative of other basic civil and political rights, any alleged infringement of the right of citizens to vote must be carefully and meticulously scrutinized." Kramer v. Union Free School Dist. No. 15, 395 U.S. 621, 626, 89 S.Ct. 1886, 23 L.Ed.2d 583 (1969). 808 The Court's concern with these difficult issues is understandable, though *808 the resulting array of opinions deciding disparate voting issues can be difficult to apply in a new context.
This case concerns a State's eligibility requirement for voting. Historically, deciding who is qualified to vote has been a relatively unfettered prerogative of the sovereign States. See Rodriguez v. Popular Democratic Party, 457 U.S. 1, 9, 102 S.Ct. 2194, 72 L.Ed.2d 628 (1982) ("the right to vote, per se, is not a constitutionally protected right"). "The States have long been held to have broad powers to determine the conditions under which the right of suffrage may be exercised . . . absent of course the discrimination which the Constitution condemns." Lassiter v. Northampton County Bd. of Elections, 360 U.S. 45, 50-51, 79 S.Ct. 985, 3 L.Ed.2d 1072 (1959) (upholding a race-neutral literacy test because literacy "has some relation to standards designed to promote intelligent use of the ballot").
More recent decisions have given varying degrees of "close constitutional scrutiny" to voter eligibility requirements under the Equal Protection Clause, invalidating many, but not all. See Harper v. Va. State Bd. of Elections, 383 U.S. 663, 668, 86 S.Ct. 1079, 16 L.Ed.2d 169 (1966) (poll tax invalid because "[w]ealth, like race . . . is not germane to one's ability to participate intelligently in the electoral process"); Carrington v. Rash, 380 U.S. 89, 85 S.Ct. 775, 13 L.Ed.2d 675 (1965) (categorical disenfranchisement of residents in the military invalid); Kramer, 395 U.S. at 632-33, 89 S.Ct. 1886, and Cipriano v. City of Houma, 395 U.S. 701, 704-706, 89 S.Ct. 1897, 23 L.Ed.2d 647 (1969) (limiting right to vote in local elections to those with special interests invalid); Evans v. Cornman, 398 U.S. 419, 90 S.Ct. 1752, 26 L.Ed.2d 370 (1970) (disenfranchising residents of a federal enclave invalid); compare Dunn v. Blumstein, 405 U.S. 330, 360, 92 S.Ct. 995, 31 L.Ed.2d 274 (1972) (one year and three-month durational residence requirements invalid), with Marston v. Lewis, 410 U.S. 679, 93 S.Ct. 1211, 35 L.Ed.2d 627 (1973) (fifty-day durational residence requirement valid). By contrast, in Richardson v. Ramirez, 418 U.S. 24, 55, 94 S.Ct. 2655, 41 L.Ed.2d 551 (1974), the Court rejected a challenge to California laws denying exfelons the right to vote in part because the Equal Protection Clause of § 1 of the Fourteenth Amendment "could not have been meant to bar outright a form of disenfranchisement which was expressly exempted from the less drastic sanction of reduced representation which § 2 imposed for other forms of disenfranchisement."
1. The essential factual predicate for plaintiffs' facial attack on the Missouri constitutional and statutory provisions at issue is the assertion that an order appointing a full guardian for a Missouri ward found to be "incapacitated" necessarily imposes a categorical ban on voting. Article VIII, § 2, of the Missouri Constitution disqualifies persons placed under guardianship "by reason of mental incapacity" from voting. The Probate Code authorizes appointment of a guardian for a broader class of adults, those unable to care for themselves "by reason of any physical or mental condition." Mo.Rev.Stat. § 475.010(9). Yet the Missouri election code provides that any person "who is adjudged incapacitated" may not vote. Therefore, plaintiffs argue, Missouri violates the Equal Protection Clause by denying the right to vote to adults not disqualified by Article VIII, § 2, of the Missouri Constitution.

If, as plaintiffs contend, appointment of a full guardian categorically prohibited the ward from voting because he or she was "adjudged incapacitated" within the meaning of § 115.133.2 of the election laws, these statutes would 809 not withstand close equal protection scrutiny when challenged, for example, by a person whose guardian *809 was appointed solely because of a physical disability. However, as the district court recognized, Scaletty's full guardianship order expressly preserved his right to vote, confirming that Missouri probate courts retain the authority to preserve a ward's right to vote as part of the statutory mandate to minimize deprivation of a ward's liberty.[5] Thus, plaintiffs' primary facial challenge fails for lack of proof.
2. Having failed to establish that Missouri law categorically disenfranchises persons under full guardianship, MOPAS alternatively argues that Article VIII, § 2, of the Missouri Constitution is nonetheless facially invalid. MOPAS does not assert any claim of direct injury to the organization, like the claim asserted in Miss. Prot. & Advocacy Sys., Inc. v. Cotten, 929 F.2d 1054 (5th Cir.1991). Rather, MOPAS asserts only associational claims on behalf of developmentally disabled persons it is authorized by Missouri and federal law to represent.[6] Defendants argue that MOPAS lacks associational standing to assert this claim. We agree.
The Fifth Circuit has held that a federally funded advocacy organization lacked standing to assert associational claims on behalf of disabled individuals because the organization "bears no relationship to traditional membership groups because most of its `clients' . . . are unable to participate in and guide the organization's efforts." Ass'n for Retarded Citizens of Dallas v. Dallas County Mental Health & Mental Retardation Ctr. Bd. of Trustees, 19 F.3d 241, 244 (5th Cir.1994). In a later case, a district court surveyed associational standing precedents and concluded that a federally funded advocacy organization lacked associational standing because it did not sue "on behalf of specific individuals who themselves have allegedly suffered concrete harm as a result of the defendant's actions." Tenn. Prot. & Advocacy, Inc. v. Bd. of Educ., 24 F.Supp.2d 808, 815-16 (M.D.Tenn.1998). For the following reasons, we agree with these decisions.
An association has standing to bring suit on behalf of its members if "(a) its members would otherwise have standing to sue in their own right; (b) the interests it seeks to protect are germane to the organization's purpose; and (c) neither the claim asserted nor the relief requested requires the participation of individual members in the lawsuit." Hunt v. Wash. State Apple Adver. Comm'n, 432 U.S. 333, 343, 97 S.Ct. 2434, 53 L.Ed.2d 383 (1977). The third requirement is a prudential limitation on standing that may be abrogated by Congress, not an element 810 of the case or controversy limitation on federal judicial power contained in Article *810 III of the Constitution. United Food & Commercial Workers Union Local 751 v. Brown Group, Inc., 517 U.S. 544, 557, 116 S.Ct. 1529, 134 L.Ed.2d 758 (1996).
Here, the record is silent as to whether persons under guardianship orders are members of MOPAS; it is fair to infer that those persons are only MOPAS "constituents." The lack of members with individual standing was also true in Hunt, where suit was brought, not by a traditional trade association, but by a state agency formed to advocate on behalf of apple growers and dealers. The Supreme Court held that the state agency nonetheless satisfied the first requirement of associational standing because, "for all practical purposes, [it] performs the functions of a traditional trade association" and because0907
while the apple growers and dealers are not "members" of the Commission in the traditional trade association sense, they possess all of the indicia of membership in an organization. They alone elect the members of the Commission; they alone may serve on the Commission; they alone finance its activities, including the costs of this lawsuit, through assessments levied upon them.
432 U.S. at 344-45, 97 S.Ct. 2434. Here, however, as the Fifth Circuit held in A.R.C. of Dallas, 19 F.3d at 244, the "constituents" of MOPAS have no such relationship to the organization. Therefore, MOPAS appears to fail the first requirement of associational standing, which is an element of an Article III case or controversy.
Even if MOPAS could satisfy the first requirement of associational standing, it cannot satisfy the third requirement because the specific claim asserted and the relief requested require participation in the lawsuit by individual persons with specific claims.[7] MOPAS concedes that States may constitutionally prohibit the mentally incompetent from voting. MOPAS argues that the Missouri regime is unconstitutional because plaintiffs' expert witness opined that, applying a definition of mental capacity he considers appropriate, some Missouri wards

whose guardianship orders do not preserve their right to vote have the mental capacity to vote. With the constitutional inquiry framed in this level of detail, the lawsuit may not properly go forward without the participation of one or more individual wards with specific claims based upon a particular incapacity and a record reflecting the basis upon which Missouri officials have denied the right to vote.
In Missouri, the judicial proceeding to determine whether a guardian should be appointed is individualized and protective of civil liberties. The finding necessary to appoint a guardian 0907 that a person is unable to receive and evaluate information or communicate decisions 0907 is indicative of a "mental incapacity" to vote within the meaning of Article VIII, § 2. Absent participation by an individual ward who has been denied the right to vote because a guardian was appointed for reasons other than "mental incapacity," the inquiry urged by MOPAS is too abstract. It invites nothing more than an impermissible advisory opinion by a lower federal court on an issue of voter eligibility that must be decided in the first instance by the State.[8]
811 *811 3. Bob Scaletty asserts a distinct as-applied equal protection claim, based on the action of election officials in refusing him the right to vote in the 2004 elections. Scaletty was diagnosed with paranoid schizophrenia, adjudged incapacitated, and placed under "full" guardianship in 1999. The guardianship order gave control of his possessions, medical care, education, support, maintenance, and general decision-making to the Jackson County Public Administrator. However, the order expressly provided that Scaletty retained the right to vote.
In 2004, the Kansas City Election Board advised Scaletty that he was not eligible to vote because he was under a guardianship order. Polling officials did not permit him to vote in the 2004 election. This action was obviously a mistake, because it was contrary to the right to vote expressly preserved in Scaletty's guardianship order. In December 2004, plaintiffs filed an amended complaint adding Scaletty as an additional plaintiff. In January 2005, having learned of their mistake, the Election Board promptly corrected the error by issuing Scaletty an Official Voter Identification Card and sending his guardian a letter advising that "Mr. Scaletty may vote in the next election."
Defendants argue that Scaletty's as-applied claim is moot because local election officials have acknowledged his right to vote. In general, a pending claim for injunctive relief becomes moot when the challenged conduct ceases and "there is no reasonable expectation that the wrong will be repeated." Comfort Lake Ass'n, Inc. v. Dresel Contracting, Inc., 138 F.3d 351, 354 (8th Cir.1998) (quotation omitted). Plaintiffs contend, and the district court agreed, that a more stringent standard of mootness should apply 0907 "a defendant's voluntary cessation of a challenged practice does not deprive a federal court of its power to determine the legality of the practice unless it is absolutely clear that the allegedly wrongful behavior could not reasonably be expected to recur." Buckhannon Bd. & Care Home, Inc. v. W. Va. Dep't of Health & Human Res., 532 U.S. 598, 609, 121 S.Ct. 1835, 149 L.Ed.2d 855 (2001) (quotation omitted). But here, as in Comfort Lake, the cessation was not truly voluntary. When made aware that Scaletty's guardianship order preserved his right to vote, local election officials advised they would allow Mr. Scaletty to vote in the next election. As state law required them to obey that court order, there is no reasonable expectation that their 2004 error will be repeated.
The problems with the present posture of Scaletty's as-applied claim go beyond mootness. The lawsuit has effectively remedied his only injury, yet Scaletty continues to pursue broad equitable relief to remedy perceived injury to others who are under Missouri guardianship orders. This he may not do. First, his claim for equitable relief fails on the merits because the specific mistake made by election officials in 2004 does not warrant prospective relief, and Scaletty has not sued for damages. See City of Los Angeles v. Lyons, 461 U.S. 95, 111-12, 103 S.Ct. 1660, 75 L.Ed.2d 675 (1983). Second, Scaletty was not injured by the alleged facial flaws in 812 the Missouri regime 0907 his guardianship order expressly *812 preserved his right to vote 0907 and he has no standing to assert the claims of others. See Lewis v. Casey, 518 U.S. 343, 357-60, 116 S.Ct. 2174, 135 L.Ed.2d 606 (1996); Steger v. Franco, Inc., 228 F.3d 889, 893 (8th Cir.2000). Third, as explained, his claim for equitable relief is moot. See also Elizabeth M. v. Montenez, 458 F.3d 779, 784-85 (8th Cir.2006); Grandson v. Univ. of Minn., 272 F.3d 568, 574-75 (8th Cir. 2001).

IV. ADA/Rehabilitation Act Claims
Title II of the ADA provides that "no qualified individual with a disability shall, by reason of such disability, be excluded from participation in or be denied the benefits of the services, programs, or activities of a public entity, or be subjected to discrimination by any such entity." 42 U.S.C. § 12132. Section 504 of the Rehabilitation Act provides the same rights, procedures, and remedies against discrimination by recipients of federal funding. See Barnes v. Gorman, 536 U.S. 181, 184-85, 122 S.Ct. 2097, 153 L.Ed.2d 230 (2002). In arguing that Missouri's guardianship voting laws violate these statutes, plaintiffs rely primarily on their contention that Missouri categorically prohibits those under full guardianship from participating in a state program or activity 0907 voting 0907 on the basis of a disability 0907 lack of self-care ability 0907 without an individualized inquiry into whether the ward is mentally competent to vote. As we have explained, this claim fails for failure to prove that the prohibition is categorical.
Alternatively, MOPAS argues that the Missouri regime violates these federal statutes because it creates an unwarranted presumption that a person placed under guardianship is incompetent to vote. Defendants argue that Title II and the Rehabilitation Act do not restrict the authority of States to determine voter eligibility because Congress did not make "unmistakably clear" its intent to interfere with this fundamental aspect of state sovereignty. Gregory v. Ashcroft, 501 U.S. 452, 460, 111 S.Ct. 2395, 115 L.Ed.2d 410 (1991) (quotation omitted). We conclude that MOPAS lacks associational standing to assert these statutory claims.
In Southeastern Community College v. Davis, 442 U.S. 397, 413, 99 S.Ct. 2361, 60 L.Ed.2d 980 (1979), the Court held that "Section 504 imposes no requirement upon an educational institution to lower or to effect substantial modifications of standards to accommodate a handicapped person." Accord Alexander v. Choate, 469 U.S. 287, 300, 105 S.Ct. 712, 83 L.Ed.2d 661 (1985). In Tennessee v. Lane, 541 U.S. at 532, 124 S.Ct. 1978, the Court confirmed that Title II "does not require States to compromise their essential eligibility criteria for public programs." In section 8(a) of the National Voter Registration Act of 1993, Pub.L. No. 103-31, passed three years after Title II of the ADA, Congress specifically preserved the States' authority to make mental capacity a voting eligibility requirement. See 42 U.S.C. § 1973gg-6(a)(3)(B). In light of these authorities, if Title II imposes any substantive restriction on Missouri's power to make mental capacity an "essential eligibility requirement" for voting 0907 an issue we need not decide 0907 adjudication of the proper extent of that restriction requires full participation by one or more individual wards whose mental incapacity has disqualified them from voting.
V. Conclusion
For the foregoing reasons, we conclude that the facial attacks by Scaletty and by MOPAS on the alleged categorical ban fail on the merits, that Scaletty's as-applied attack fails for a number of interrelated reasons, and 813 that MOPAS lacks associational standing to assert non-categorical equal protection and statutory claims absent *813 participation in the lawsuit by one or more wards with individual standing to raise those claims. Accordingly, the judgment of the district court is affirmed.
[*] Judge Bye would grant the petition for rehearing en banc.
[*] The HONORABLE SANDRA DAY O'CONNOR, Associate Justice, Supreme Court of the United States (Ret.), sitting by designation.
[1] The HONORABLE ORTRIE D. SMITH, United States District Judge for the Western District of Missouri
[2] As States expanded the right to vote in the nineteenth century, most adopted constitutional provisions disqualifying persons who were idiots, insane, of unsound mind, or under guardianship. Today, thirty-eight state constitutions retain provisions of this type. See Sammin & Hurme, Guardianship and Voting Rights, ABA "Bifocal," Fall 2004, at 11-13, available at www.abanet.org/aging/publications/bifocal/261.pdf.

[3] In Missouri, the probate court is the probate division of the circuit court, the trial court with original jurisdiction over all civil and criminal cases. See Mo.Rev.Stat. §§ 472.020, 478.070.
[4] The parties agree that the ban on voting in § 115.133.2 is a "legal disability" within the meaning of § 475.078.2.
[5] The summary judgment record reflects that, while local probate practices vary, other Missouri wards under full guardianships have also had their voting rights specifically preserved. Judicial support for this construction of the statutes is found in Estate of Werner, 133 S.W.3d 108, 109 (Mo.App.2004), where the Court of Appeals affirmed a guardianship order reinstating the ward's voting rights, although that portion of the order was not at issue on appeal. See also 5C Borron, Jr., Missouri Practice: Probate Law & Practice § 1966, at 488 (3d ed. 2000) ("Even though the statute contemplates a potential total deprivation of civil rights, nevertheless, consistent with the least restrictive environment principle, the court may . . . except from the order of adjudication specified rights."); 3 Borron, Jr., Missouri Practice: Probate Forms Manual Form 4.18, at 498 (2d. ed.1997) (model "Judgment of Total Incapacity" preserving the ward's right to vote).
[6] MOPAS is a private entity designated by Missouri to advocate for those with mental disabilities, as required by the Protection and Advocacy for Mentally Ill Individuals Act of 1986, 42 U.S.C. §§ 10801 et seq., and the Developmental Disabilities Assistance and Bill of Rights Act of 2000, 42 U.S.C. § § 15001 et seq.
[7] Congress has not abrogated prudential standing requirements by expressly authorizing this type of global challenge to state programs absent the participation of individuals seeking redress of specific injuries. See 42 U.S.C. §§ 10804(c), 10807.
[8] The blanket disenfranchisement of those who are mentally incapacitated may be a subject warranting equal protection inquiry. See Tenn. v. Lane, 541 U.S. 509, 524 & n. 5, 124 S.Ct. 1978, 158 L.Ed.2d 820 (2004), criticizing, though not in constitutional terms, state laws categorically disqualifying "idiots" from voting; Richardson v. Ramirez, 418 U.S. at 86, 94 S.Ct. 2655 (Marshall, J., dissenting) ("measured against the standards of this Court's modern equal protection jurisprudence, the blanket disenfranchisement of ex-felons cannot stand"). But MOPAS does not make this facial argument. Until the Supreme Court rules to the contrary, we are governed by the principle that a non-discriminatory voting restriction that is "found to promote intelligent use of the ballot" will be upheld. San Antonio Indep. Sch. Dist. v. Rodriguez, 411 U.S. 1, 36 n. 79, 93 S.Ct. 1278, 36 L.Ed.2d 16 (1973) .
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 169 S.W.3d 116 (2005)
In the Matter of: Steven PRYE.
No. ED 85576, ED 85777.
Missouri Court of Appeals, Eastern District, Division One.
August 2, 2005.
117 *117 Anthony E. Rothert, Alton, IL, for appellant.
Lee Clayton McMurray, St. Louis, MO, for ad litem.
Andrew G. Toennies, Gerald A. Nester, Office of Public Adm., Jeremiah W. (Jay) Nixon, Attorney General, Woodie J. Curtis, Jr., Assistant Attorney General, St. Louis, MO, for Respondent.
GARY M. GAERTNER, Sr., Presiding Judge.
Appellant, Steven M. Prye ("Prye"), whose interests are represented by the Illinois Office of State Guardian ("IOSG") appeals from the judgment of the Circuit Court of the City of St. Louis ordering IOSG to take custody and control of Prye and to place him in an appropriate treatment setting in Illinois. We reverse in part and dismiss in part.
Prye is approximately fifty-two years old. He was born and raised in Memphis, Tennessee. Prye has degrees from Yale University, Harvard Law School, and New York University School of Law. After law school, Prye worked in New York City law firms for several years. Then he was a law professor in Vermont and at the University of Illinois.
While at the University of Illinois, Prye began to show signs of mental illness, and he eventually lost his job there and returned to Memphis, Tennessee. In Memphis, Prye was hospitalized in January of 2001 and received inpatient treatment at least four more times at the Memphis Mental Health Institute between April 25, 2001 and October 1, 2002.
In October of 2002, Prye went to visit a friend in Champaign, Illinois and upon his arrival, his friend took him to a hospital for treatment. In January of 2003, Prye was committed under Illinois law to McFarland Mental Health Center ("McFarland") in Springfield, Illinois. Prye was transferred in August of 2003 to the Chester Mental Health 118 Center ("Chester") in Chester, Illinois, which was a high security mental health care facility. Prye *118 was transferred to Chester because of his attempts to elope and an incident with a staff member at McFarland. At Chester, Prye was diagnosed with Pick's syndrome.[1]
While Prye was at Chester, a guardianship proceeding was commenced in Sangamon County, Illinois, and the Sangamon County court issued an order appointing IOSG as "plenary guardian" of Prye.
When Prye was at Chester, he was often placed in physical restraints due to his combative and uncontrolled behavior. Further, he received no medication to treat Pick's disease. IOSG facilitated an evaluation at Washington University in St. Louis, Missouri, which revealed Prye suffered from Schizo affective Disorder, Bi-polar type. IOSG transferred Prye out of Chester on March 31, 2004, before his physician there had treated him for the new diagnosis.
IOSG placed Prye in Park Haven Care Center ("Park Haven"), a nursing home in Smithton, Illinois. Shortly thereafter, he was discharged due to an incident at a nearby grade school, and IOSG transferred him to the psychiatric ward at St. Alexius Hospital ("St.Alexius") in the City of St. Louis. On April 15, 2004, Prye was discharged from St. Alexius and transferred back to Park Haven. After repeated instances of inappropriate behavior, IOSG removed Prye from Park Haven on April 20, 2004 and readmitted him to the psychiatric ward at St. Alexius. Numerous types of treatment have been attempted, although none have been successful. Prye has refused any kind of care and has refused to allow physicians to examine him.

On September 20, 2004, St. Alexius filed a petition for appointment of a guardian, seeking that Prye be declared incapacitated and a Missouri guardian appointed for him pursuant to Chapter 475, RSMo (2000).[2] On October 20, 2004, St. Alexius filed an application for detention of Prye, asking that in the alternative to the guardianship petition, Prye be involuntarily committed at the Missouri Psychiatric Center ("MPC") for treatment of his mental illness. St. Alexius alleged that Prye had been diagnosed with Schizoaffective Disorder, Bipolar type, and was a danger to himself and employees of St. Alexius. St. Alexius stated that Prye had already injured several employees and asked that he be detained, evaluated, and treated immediately pursuant to section 632.305. St. Alexius also attached affidavits from ten employees who attested to his violent behavior.
On November 4, 2004, St. Alexius amended its guardianship petition. This petition indicated that Penny Rausch was serving as the Guardian of Prye pursuant to an order issued in Sangamon County, Illinois on or about December 12, 2003. The petition also stated that Prye had resided in Missouri at St. Alexius for the last six months and that the need for a Missouri guardian had become necessary. The petition asserted that Prye needed a guardian to be responsible for healthcare decisions, appropriate residential care, and overseeing and arranging for necessary personal care because Prye was unable to take care of these matters due to his schizophrenia, depression, delusional behavior, take care of these matters due to his schizophrenia, depression, delusional behavior, hallucinations, and poor judgment. St. Alexius's petition sought to have Gerard Nester, the Public 119 Administrator *119 for the City of St. Louis, appointed as Prye's guardian. St. Alexius attached several exhibits to its amended petition. The first exhibit showed that Prye's closest relative was a half-sister in Memphis, Tennessee. Another exhibit detailed Prye's assets. Also attached were a letter of guardianship granting IOSG control and custody over Prye, an order adjudicating the need for and appointment of a guardian, the report of a guardian ad litem recommending a guardianship for Prye, and the underlying petition seeking an adjudication of disability and an appointment of a guardian filed by James E. Myers, Psy.D., in Sangamon County, Illinois.
Several parties were allowed to intervene in the proceedings. Gerard Nester was allowed to intervene as an interested party because no other natural person formally consented to act as a prospective Missouri guardian. The IOSG filed a motion to intervene because it had an interest in that it was already the legally appointed guardian pursuant to the court order in Sangamon County, Illinois. This motion was granted "as a matter of comity." The Missouri Department of Mental Health ("MDMH") also filed a motion to intervene, which was granted.
Prye waived his right to be present at trial and also waived his right to a jury trial. St. Alexius was represented by private counsel at trial. On December 13, 2004, the Circuit Court of the City of St. Louis issued its "Order And Judgment On Petition For Appointment Of Guardian Or In The Alternative Application For Detention (Involuntary Civil Commitment)." The trial court found St. Alexius's application for detention was not filed under oath as required by section 632.305.1. Therefore, it was not properly before the trial court, and it was denied. Further, the trial court found Prye had not changed his state of domicile or legal residence to Missouri either through his own acts or the acts of his Illinois guardian. However, the trial court found that even though Prye was not a Missouri resident and already had a guardian in Illinois, it still had jurisdiction to appoint a Missouri guardian for Prye pursuant to section 475.035. The trial court also found that the Illinois guardianship had "no extraterritorial legal effect" in Missouri, and further, that the Illinois guardian had no legal authority to admit or keep Prye in a mental health facility in Missouri or Illinois without Prye's actual, willing consent. The trial court denied the motions to dismiss of both IOSG and the Public Administrator. The trial court found Prye met the criteria justifying appointment of a guardian, but elected not to appoint a guardian in this case. According to the trial court, Prye's physical presence in Missouri was "artificially and improperly created" by IOSG, which exceeded its legal authority in moving Prye to Missouri. Finally, the trial court ordered IOSG to take physical custody and control of Prye and to place him in an appropriate treatment setting in Illinois, the only place it had jurisdiction. Further, the trial court issued a writ of habeas corpus and directed St. Alexius to produce the body of Prye for a show cause habeas corpus hearing.[3]
This appeal followed.
On January 14, 2005, we entered an order staying all further proceedings in the trial court pending resolution of this appeal. On March 21, 2005, we clarified that order stating that until the appeal is resolved, the IOSG is the

120 only recognized *120 court-appointed guardian for Prye. On June 17, 2005, we issued an order lifting the stay in part to allow IOSG to take custody of Prye and find an appropriate placement for him other than in Missouri. After the case was argued and submitted, this Court was notified on July 7, 2005, that Prye had been discharged from St. Alexius and moved outside the State of Missouri.
Initially, we must determine whether the controversy in this matter has been rendered moot. An appeal may be rendered moot if an event occurs that makes a court's decision unnecessary or makes granting effectual relief by the court impossible. Kinsky v. Steiger, 109 S.W.3d 194, 195 (Mo.App. E.D.2003), quoting Local Union 1287 v. Kansas City Area Transp. Auth., 848 S.W.2d 462, 463 (Mo.banc 1993).
Missouri courts have only recognized two narrow exceptions to the mootness doctrine. First, if a case becomes moot after argument and submission, dismissal is within our discretion. Kinsky, 109 S.W.3d at 196. The second exception applies if a case presents an issue that (1) is of general importance and public interest, (2) will recur, and (3) will elude appellate review in future live controversies. Id. If this exception applies, dismissal is also within our discretion. Id. The second exception "is very narrow . . . and if an issue of public importance in a moot case is likely to be present in a future live controversy practically capable of review, the `public interest' exception does not apply." Id., quoting In re Southwestern Bell Tel. Co.'s Pro. Rev., 18 S.W.3d 575, 577 (Mo.App. W.D.2000).
In this case, Prye has been moved from the state of Missouri, which renders this case moot. However, before dismissing the case, we must determine if an exception to the mootness doctrine applies. The second exception to the mootness doctrine is inapplicable because there is no reason that this issue would elude appellate review in future live controversies. However, Prye was moved out of the state of Missouri after argument and submission of this appeal. Thus, this situation falls within an exception to the mootness doctrine, and we have discretion to decide whether to dismiss the appeal. We decline to dismiss the appeal in whole, however, and exercise our discretion to address the second point of the IOSG's appeal, due to the significance of the trial court's decision in this regard.
In its second point on appeal, IOSG argues the probate court erred in refusing to recognize and give effect to the Illinois guardianship order under the Full Faith and Credit Clause of the United States Constitution, and in refusing to dismiss the guardianship and detention petitions.
Review of a probate court's rulings in a proceeding to appoint a guardian or conservator is governed by Murphy v. Carron, 536 S.W.2d 30, 32 (Mo.banc 1976). Oliva v. Oliva, 113 S.W.3d 269, 273 (Mo.App. W.D.2003), quoting Keyser v. Keyser, 81 S.W.3d 164, 168 (Mo.App. W.D.2002). As a result, we will sustain the trial court's judgment unless there is no substantial evidence to support it, it is against the weight of the evidence, or it erroneously declares or applies the law. Murphy, 536 S.W.2d at 32. In determining the sufficiency of the evidence, we accept as true the evidence and all inferences favorable to the court's decision and disregard all contrary evidence and inferences. In re Estate of Ferguson, 130 S.W.3d 656, 660 (Mo.App. E.D.2004).
The probate court's judgment is premised, in large part, on its conclusion that the Illinois guardianship order is not 121 entitled *121 to full faith and credit and; therefore, IOSG is not afforded extraterritorial jurisdiction in Missouri.
Because Prye had no Missouri guardian, the trial court recognized that the criteria to justify appointment of a Missouri guardian were present. Instead of appointing a Missouri guardian, however, the trial court fashioned its own remedy and directed IOSG to take custody of Prye and move him to Illinois, the only jurisdiction where it believed IOSG had legal authority to act.
Missouri is compelled to give full faith and credit to a judgment of another state unless the judgment of the rendering state is void for lack of jurisdiction over the person or subject matter, or is obtained by fraud. Phillips v. Fallen, 6 S.W.3d 862, 864 (Mo.banc 1999). No party to these proceedings offers any argument that the Illinois judgment falls within these exceptions or that the Illinois judgment appointing the guardian is not valid.
The probate court relied upon a case from the Southern District of the Missouri Court of Appeals from 1982 that held the rights and powers of guardians are considered as strictly local and do not entitle them to exercise any authority over the person or personal property of their wards in other States. Turner v. Turner, 637 S.W.2d 764, 767 (Mo.App. S.D.1982). This conclusion was premised upon the same general reasoning that has circumscribed

the rights and authorities of executors and administrators and relied upon dicta in a United States Supreme court case from 1881, Hoyt v. Sprague, 103 U.S. 613, 13 Otto 613, 26 L.Ed. 585 (1881). Turner, 637 S.W.2d at 767.

However, the issue in the Turner appeal concerned the capacity of a foreign conservator to maintain a suit in Missouri on behalf of the alleged incapacitated person. Id. at 766. It did not address the issue of whether a foreign judgment appointing a guardian is entitled to full faith and credit. Id. In addition, the Turner case relied upon an interpretation of section 475.335, which was subsequently rewritten. Indeed, the Missouri guardianship code was revised in 1983 and now recognizes foreign conservators and guardians. Section 475.055 was rewritten in 1983, and the revision included subsection 3, which states:

A person becomes a guardian or conservator of a minor or incapacitated or disabled person upon issuance of letters of guardianship or conservatorship by the court. A person so appointed need not reside within this state in order to accept or serve as guardian or conservator, unless the court finds that such person, taking into consideration his place of residence, is unable to effectively perform the duties of guardian or conservator as provided by this code. The guardianship or conservatorship status continues until terminated, without regard to the location from time to time, whether within or outside of this state, of the guardian and ward or conservator and protectee.

Section 475.055.3. Previously, this section had stated that "no person who is a nonresident of this state shall be appointed guardian of the person or of the estate." Section 475.055.2 RSMo (1982).

In addition, other provisions of Chapter 475 provide:

If no local conservator has been appointed and no petition in a conservatorship proceeding is

pending in this state, a domiciliary foreign guardian, curator, committee or conservator may file

with a court of a county in this state in which property belonging to the minor or disabled person is

located, authenticated copies of his appointment and of any official bond he has given. Thereafter,

122

he may exercise as to assets in this state *122 all powers of a local conservator and may maintain

actions and proceedings in this state subject to any conditions imposed upon nonresident parties

generally.

Section 475.336.

A foreign guardian . . . submits personally to the jurisdiction of the courts of this state in any proceeding relating to. . . doing any act as a guardian or conservator in this state which would have given the state jurisdiction over him as an individual.

Section 475.337. Thus, while there is a paucity of Missouri case law on this issue, these Missouri statutes indicate a willingness to recognize guardianship judgments without regard to the location of the guardian or ward.

In this case, IOSG removed Prye from Illinois where it was appointed as Prye's guardian. IOSG filed a certified copy of its "Letters of Guardianship" in Missouri. Further, IOSG arranged for psychiatric consultations in Missouri and signed Missouri hospital admissions papers on behalf of Prye. Thus, IOSG has submitted itself to the jurisdiction of Missouri courts through these actions. As mentioned above, Missouri law expresses an intent to continue a guardianship without regard to the location from time to time, whether within or outside of this state, of the guardian and ward. Finding that IOSG has no authority to act with regard to its ward, who was located in Missouri, would be contrary to the intent of section 475.055.3, which seeks to give Missouri guardianships such power in other jurisdictions.

Therefore, the Illinois guardianship status of IOSG is entitled to recognition and enforcement by the Missouri courts under the Full Faith and Credit Clause. The probate court's conclusion that the Illinois guardianship had no extraterritorial effect outside of Illinois, and that the Illinois guardian had no legal authority to admit Prye to a Missouri mental health facility erroneously applied the law. The Illinois guardian was entitled to recognition in Missouri. Point granted.

We exercise our discretion to dismiss IOSG's remaining points on appeal as moot.

The judgment of the trial court is reversed. The rest of the appeal is dismissed.

SHERRI B. SULLIVAN, J. and BOOKER T. SHAW, J., concur.
[1] In later evaluations, it was determined that this was an incorrect diagnosis, and Prye did not have Pick's disease, a form of dementia. [2] All further statutory references are to RSMo (2000) unless otherwise indicated. [3] The trial court recognized that if IOSG complied with the order to take custody and control of Prye and return him to Illinois, the habeas corpus hearing order would become moot.
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 Prye v. Carnahan, Not Reported in F.Supp.2d (2006)
2006 WL 1888639 United States District Court,
W.D. Missouri, Central Division.
Steven M. PRYE, et al., Plaintiffs, v.
Robin CARNAHAN, et al., Defendants.
No. 04-4248-CV-C-ODS. | July 7, 2006.
Attorneys and Law Firms
Alison Barkoff, Ira Abraham Burnim, Jennifer Mathis, Bazelon Center for Mental Health Law, Washington, DC, Anthony E. Rothert, James G. Felakos, American Civil Liberties Union of Eastern Missouri, David E. Hale, Michael H. Finkelstein, Missouri Protection & Advocacy Services, Jefferson City, MO, James Michael Kirkland, Sonnenschein Nath & Rosenthal, Kansas City, MO, Neil Bradley, American Civil Liberties Union, Atlanta, GA, Jeffrey M. Plesko, Guardianship & Advocacy Commission, Anna, IL, John H. Wank, Guardianship & Advocacy Commission, Chicago, IL, for Plaintiffs.
Michael Pritchett, Missouri Attorney General, Jefferson City, MO, Rufus J. Tate Jr., Tate Law Firm, L.L.C., St. Louis, MO, David B. Raymond, Blackwell Sanders Peper Martin, F. Russell Millin, Kansas City, MO, for Defendants.
Opinion
ORDER AND OPINION (1) DENYING PLAINTIFFS’ MOTION FOR SUMMARY JUDGMENT AND (2) GRANTING DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT
ORTRIE D. SMITH, District Court Judge.
*1 Pending are cross-motions for summary judgment. For the following reasons, Plaintiffs’ motion is denied and Defendants’ motion is granted.
I. BACKGROUND
Steven Prye originally filed this suit in October 2004, seeking an order requiring Defendants to allow Prye to register to vote before the November 2004 election. Following a hearing, the Court denied Prye’s request for a preliminary injunction. On December 6, 2004, an Amended Complaint was filed that, inter alia, added Bob Scaletty, Patrick Sharp, and Missouri Protection and Advocacy Services, Incorporated (“MPAS”) as Plaintiffs. At their requests, Sharp and Prye were dismissed on July 21, 2005, and September 22, 2005, respectively, leaving Scaletty and MPAS as the only Plaintiffs. This effectively left Counts I, II, IV and V for consideration because Count III pertained only to Prye.
Generally speaking, the Amended Complaint challenges Missouri’s Constitution and statutes that deny the right to vote to individuals who have been appointed guardians under a full order of protection due to mental incapacity. Counts I and II assert claims under the Equal Protection and Due Process clauses, respectively, while Counts IV and V assert claims under the Americans with Disabilities Act (“ADA”) and the Rehabilitation Act.
For purposes of the parties’ cross-motions for summary judgment, the following facts are undisputed.1 Scaletty has been diagnosed as suffering from schizophrenia and, due to his mental illness, in 1999 was placed under a full order of protection in accordance with procedures established in Missouri law. Although the order of protection reserved his right to vote, he was subsequently denied the right to vote by election officials who explained that state law does not allow individuals under an order of protection to vote. However, in January 2005 (after Scaletty became a party in this case), the Kansas City Board of
1

Prye v. Carnahan, Not Reported in F.Supp.2d (2006)
Election Commissioners sent Scaletty’s guardian a voter identification card on his behalf and advised that Scaletty was eligible to vote.
MOPAS is a not-for-profit corporation the State of Missouri has designated, pursuant to both the Protection and Advocacy for Individuals with Mental Illness Act, 42 U.S.C. § 10801 et seq. (“PAIMI”), and the Developmental Disabilities Assistant and Bill of Rights Act, 42 U.S.C. § 15001 et seq. (“DD Act”), as Missouri’s statewide protection and advocacy entity to protect and advocate for the legal and civil rights of Missourians who have mental illnesses and developmental difficulties. Pursuant to the DD Act, MOPAS is authorized to pursue legal and other remedies for “the protection of, and advocacy for, the rights of” individuals with developmental disabilities, 42 U.S.C. § 15043(a)(2)(A)(I), and is independent of any agency (including any state agency) “that provides treatment, services, or habilitation to individuals with developmental disabilities.” Id. § 15043(a)(2)(G). The provisions under PAIMI are similar. 42 U.S.C. § 10805(a)(1)-(2).
II. DISCUSSION
A. Jurisdiction
*2 Defendants challenge the Court’s jurisdiction, contending (1) Scaletty lacks standing because his claims are moot and (2) MOPAS lacks standing because it has not suffered an injury and (with Scaletty’s anticipated dismissal), there are no individual plaintiffs with standing in the case. The Court disagrees.
Defendants’ arguments regarding Scaletty conflate two related jurisdictional concepts. “The Supreme Court has repeatedly described the mootness doctrine as ‘the doctrine of standing set in a time frame: The requisite personal interest that must exist at the commencement of the litigation (standing) must continue throughout its existence (mootness).’ “ McCarthy v. Ozark School Dist., 359 F.3d 1029, 1035 (8th Cir.2004) (quoting Friends of the Earth, Inc. v. Laidlaw Envt’l Servs. (TOC), Inc., 528 U.S. 167, 189 (2000)). Thus, standing is to be evaluated at the time the lawsuit is initiated, and there is no doubt that at the time Scaletty joined the suit as a plaintiff he was suffering an injury in fact because he was denied the right to vote.
The mootness doctrine is an outgrowth of Article III’s case and controversy requirement. E.g., Lupiani v. Wal-Mart Stores, Inc., 435 F.3d 842, 847 (8th Cir.2006). “Since Art[icle] III courts are precluded from issuing advisory opinions, it necessarily follows that they are impotent to decide questions that cannot affect the rights of litigants in the case before them.” Super Tire Eng’g Co. v. McCorkle, 416 U.S. 115, 127 (1974) (quotations omitted). Scaletty seeks only equitable relief and not damages; the most he could hope for is an order or injunction requiring Defendants to allow him to vote, but Defendants have taken this action voluntarily. Consequently, the Court cannot affect the parties’ rights or change their relationship, so Scaletty’s claims are moot.
However, there are circumstances in which moot cases should continue and not be dismissed. One exception arises when the defendant voluntarily ceases the challenged practice or act. “It is well settled that a defendant’s voluntary cessation of a challenged practice does not deprive a federal court of its power to determine the legality of the practice unless it is absolutely clear that the allegedly wrongful behavior could not reasonably be expected to recur.” Buckhannon Bd. & Care Home, Inc. v. West Virginia Dep’t of Health & Human Resources, 532 U.S. 598, 609 (2001) (quotations omitted, emphasis supplied); see also Adarand Constructors, Inc. v. Slater, 528 U.S. 216, 222 (2000). “The ‘heavy burden of persua[ding]’ the court that the challenged conduct cannot reasonably be expected to start up again lies with the party asserting mootness.” Friends of the Earth, 528 U.S. at 189 (quoting United States v. Concentrated Phosphate Export Ass’n, 393 U.S. 199, 203 (1968)).
Defendants do not dispute these legal precepts, but instead insist they have satisfied their burden by issuing Scaletty a voter registration card and not further interfering with his right to vote. This only demonstrates Defendants have voluntarily ceased the challenged conduct. Keeping in mind that theirs is a “heavy burden,” the Court cannot conclude it is “absolutely clear” Defendants will not reverse course and return to their prior course of prohibiting Scaletty from voting. Therefore, the voluntary cessation exception to the mootness doctrine applies, and the Court has jurisdiction over Scaletty’s claims.
*3 Defendants also refer to cases discussing the certainty of prospects for harm, but they are cases discussing whether and when the fear of injury is a sufficient injury in fact to confer standing upon the plaintiff. As discussed, standing is not an issue
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because Scaletty was not allowed to vote when he asserted his legal claims in this case and there can be no doubt that being denied an opportunity to vote is an injury in fact. Caselaw clearly places the burden on Defendants to demonstrate their voluntary cessation is permanent, and Defendants have not satisfied this burden.
The arguments regarding MOPAS depend, in large measure, on the arguments regarding Scaletty. Defendants contend associational standing can exist only if the association is joined by a member who has individual standing. To the extent this legal reasoning is valid (an issue the Court need not address2), it is answered by the Court’s conclusion that Scaletty has standing to sue. The Court also holds MOPAS satisfies the other requirements for associational standing because the interests it asserts are germane to its purpose and the relief it seeks does not require participation of individual members. E.g., United Auto., Aerospace & Agric. Implement Workers of Am. v. Brock, 477 U.S. 274, 281-82 (1986) (quoting Hunt v. Washington State Apple Advertising Comm’n, 432 U.S. 333, 343 (1977) and Warth v. Seldin, 422 U.S. 490, 511 (1975)).
B. Eleventh Amendment Immunity
Defendants Robin Carnahan and Jeremiah (Jay) Nixon, who have been sued in their official capacities as Missouri Secretary of State and Missouri Attorney General, respectively, contend they are entitled to Eleventh Amendment immunity because they are not proper defendants in this action. This argument is somewhat confusing because it improperly blends two distinct defenses.
These officials contend they are not responsible for administering elections or registering voters. If this were the case, these officials would be entitled to judgment for that reason alone just like any other purported defendant in any other case who had no role in causing the plaintiff’s injury, and there would be no need to consider the Eleventh Amendment. However, the officials’ claim of noninvolvement lacks merit. Plaintiffs’ challenge is not limited to the decisions of those who register voters, but to laws that dictate who may or may not vote. By law, the Missouri Secretary of State and the Missouri Attorney General are charged with carrying out statutory directives on these matters, and are therefore proper defendants in this case. This observation resolves the issue without necessitating consideration of the novel assertion that the Eleventh Amendment bars imposition of purely prospective equitable relief.
C. Statutory Claims3
Plaintiffs’ claims rely variously on general propositions about individuals adjudged to be incapacitated and specific facts from specific cases. Separating these matters is important to an understanding of Plaintiffs’ claims as well as the legal analysis they necessitate. This process is best undertaken by starting with the general propositions and arguments.
1.
*4 The Missouri Constitution establishes the qualifications for voters and in so doing declares, inter alia, that “no person who has a guardian of his or her estate or person by reason of mental incapacity, appointed by a court of competent jurisdiction ... shall be entitled to vote....” Mo. Const. Art. 8, § 2. Prior to 1958, the provision declared simply “no insane person” could vote; the language was changed “to give polling officials something tangible on which to decide whether a person was disqualified by reason of his mental condition.” New v. Corrough, 370 S.W.2d 323, 327 (Mo.1963).
Missouri’s Probate Code establishes the procedures by which an individual might be adjudicated as incapacitated and a guardian appointed. An “incapacitated person” is “one who is unable by reason of any physical or mental condition to receive and evaluate information or to communicate decisions to such an extent that he lacks capacity to meet essential requirements for food, clothing shelter, safety or other care such that serious physical injury, illness, or disease is likely to occur.” Mo.Rev.Stat. § 475.010(9). However, a person may be adjudicated to be “partially incapacitated” if they are “unable by reason of any physical or mental condition to receive and evaluate information or to communicate decisions to the extent that he lacks capacity to meet, in part, essential requirements for food, clothing, shelter, safety, or other care without court-ordered assistance.” Id. § 475.010(14). A finding of partial incapacity does not trigger any legal disabilities “except to
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the extent specified in the order of adjudication, provided that the court shall not impose ... any legal disability other than those which are consistent with the condition of the ward or protectee.” Id. § 475.078.1 (emphasis supplied). Conversely, a finding of full or total incapacity “does operate to impose ... all legal disabilities provided by law, except to the extent specified in the order of adjudication....” Id. § 475.078.2 (emphasis supplied). One such “legal disability provided by law” is a restriction on the ability to vote. See id. § 115.133.2. The combined effects of the statutes cited is to (1) preserve the right to vote for partially incapacitated individuals, unless the court specifies otherwise, and (2) deny the right to vote for totally incapacitated individuals, unless the court specifies otherwise. As a final indication that a probate judge is empowered and obligated to tailor an order of protection to the needs of the ward or protectee and not impose limits that are greater than necessary, section 475.078.3 states as follows (the emphasis is supplied):
A person who has been adjudicated incapacitated ... shall be presumed to be incompetent. A person who has been adjudicated partially incapacitated ... shall be presumed to be incompetent. The court ... may determine that an incapacitated ... or partially incapacitated ... person is incompetent for some purposes and competent for other purposes.
*5 Plaintiffs do not contest that a person may be mentally incapacitated to such a degree that Missouri may lawfully deprive that person of the right to vote. Plaintiffs instead contend Missouri violates federal law by denying the right to vote to all persons under a full order of protection due to a finding of incapacity because incapacitated individuals (or, at least some of them) are qualified to vote notwithstanding a probate court’s finding of incapacity.
The Americans with Disabilities Act (“ADA”)4 declares that “no qualified individual with a disability shall, by reason of such disability, be excluded from participation in or be denied the benefits of the services, programs or activities of a public entity, or be subjected to discrimination by any such entity.” 42 U.S.C. § 12132. A “qualified individual with a disability” is “an individual with a disability who, with or without reasonable modifications to rules, policies, or practices ... meets the essential eligibility requirements for the receipt of services or the participation in programs or activities provided by a public entity.” Id. § 12131(2).
Defendants argue Congress did not intend the ADA to apply to elections. In so doing, they overstate the reach of the Fifth Circuit’s holding in Lightburne v. City of El Paso. There, the issue at hand was whether the Texas Secretary of State was a proper defendant: the Texas Secretary of State was statutorily charged with the duty of “enforcing election laws” and the plaintiffs contended the ADA was an “election law” within the meaning of the Texas statute. 118 F.3d 421, 428-29 (5th Cir.1997), cert. denied, 522 U.S. 1052 (1998). The Fifth Circuit held it was not, so the Texas Secretary of State was not the official responsible for enforcing its provisions in the election context. Id. at 429-30. The Fifth Circuit did not hold the ADA has no application to state elections. To the contrary, the plain language of the statute dictates that it does. Cf. Pennsylvania Dep’t of Corrections v. Yeskey, 524 U.S. 206, 210-11 (1998) (holding ADA applies to prisons); Gorman v. Bartch, 152 F.3d 907, 912-13 (8th Cir.1998) (holding ADA applies to transportation of arrested individual to jail). An election is undeniably an activity of a public entity, and the ADA prohibits excluding qualified individuals with disabilities from participating in a public entity’s activities.5
The difficulty arises in determining whether people who have been adjudged incompetent can, with or without accommodation, meet the essential eligibility requirements for voting. There is no universal answer to this question: some can, and some cannot. Plaintiffs concede several states have established competency as a prerequisite to voting, and these decisions are specifically countenanced in the National Voter Registration Act, 42 U.S.C. § 1973gg-6(a)(3)(B), which allows states to remove registrants from the list of eligible voters “as provided by State law, by reason of criminal conviction or mental incapacity.” No federal statute-including the ADA and the Rehabilitation Act-purports to establish a standard of competency for voters. However, Plaintiffs have conceded that (1) a state may establish a standard of competency for voters and (2) under such a standard, some people may be so incapacitated they lack the ability to vote. The question thus becomes: does Missouri’s method for making this determination violate the ADA? Considering the entirety of Missouri law, the Court answers this question in the negative.
*6 In their generalized attack, Plaintiffs point only to the constitutional and statutory language indicating that a person under a full order of protection is presumed incompetent and cannot vote. This narrow examination is enlightened by examining the totality of Missouri law, which requires an individualized determination of the individual’s mental capacity and entry of an order that is no more limiting than necessary to protect the individual. See, e.g., Mo.Rev.Stat. § 475.078.3 (allowing the probate court to find, and enter an order recognizing, a person is incompetent as to some matters and competent as to others). If the evidence in a particular case persuades a probate court that a person is mentally incapacitated as to some matters but not incapacitated with respect to his or her ability to vote, the court is to enter an order tailored to reflect this finding. It
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makes no difference if one views the person as (1) partially incapacitated or (2) fully incapacitated except for certain areas, as contemplated by section 475.078.2: the net effect is to afford the person the protection needed and allow him or her to operate without the strictures of an order of protection with respect to those aspects of life for which protection is not required-including, if appropriate in a given case, the right to vote).
The Court’s conclusion might be different if the entire sum and substance of Missouri law dictated that any person with a legally appointed guardian-regardless of that person’s abilities and limitations-could not vote. Such a situation might violate the ADA. However, this is not the entirety of Missouri law. Missouri affords an individualized determination of a person’s abilities and limitations and denies the right to vote to those who lack the mental capacity to exercise that right and therefore are not qualified to do so. In short, the scheme is designed to differentiate those who are qualified to vote from those who are not, and deny the right only to those who are not.
2.
In their more specific arguments, Plaintiffs present evidence tending to demonstrate certain individuals have been denied the right to vote following proceedings in probate court even though they actually have the mental capacity to vote. The difficulty arises in determining what role, if any, this contention can play in this proceeding-particularly in light of Plaintiffs’ failure to clearly indicate the role this evidence is intended to play.
To the extent Plaintiffs intend to suggest individuals adjudged mentally incapacitated are irrevocably branded as unable to vote, their argument fails. These individuals have recourse in the probate proceedings. Apart from a generalized ability to seek modifications to an order of protection when conditions change, state law requires periodic review by the probate court as a matter of course. See Mo.Rev.Stat. § 475.082.
Plaintiffs may also be contesting the correctness or legality of the rulings made in these individual cases. Setting aside the question of whether this is permissible given that these individuals are not parties to the case, the Court observes the effort is impermissible as violative of the Rooker/Feldman doctrine.6 The doctrine bars relief in “cases brought by state-court losers complaining of injuries caused by state-court judgments rendered before the district court proceedings commenced and inviting district court review and rejection of those judgments.” Exxon Mobil Corp. v. Saudi Basic Industries Corp., 544 U.S. 280, 284 (2005). The Court does not intend to utilize the term “losers” as referring to the Plaintiffs, but the underlying concept applies: Plaintiffs contend a state court’s decision violated the law and are asking a federal court to invalidate that decision. This is not allowed. Id. at 284-85.
*7 It may be that Plaintiffs simply wish to demonstrate the Missouri probate courts occasionally produce incorrect results. If this is their intent, then two problems are presented. First, the combined effects of the Rooker/Feldman doctrine and customary preclusion principles prevent the Court from relitigating or “re-deciding” the extent of an individual’s competency. The Court must accept the findings and conclusions of the state courts on this matter and cannot endeavor to ascertain the correctness of those decisions as part of an effort to invalidate the process as a whole. Second, even if it could be established that Missouri’s probate courts make errors, such a showing would not demonstrate a violation of federal law. The ADA and the Rehabilitation Act do not establish a basis for reviewing state court decisions or “federalizing” competency hearings.
Finally, it may be that Plaintiffs are relying on these specific examples to demonstrate the content of Missouri law. In other words, they may be arguing that the failure to preserve these individuals’ voting rights demonstrates Missouri law is incapable of doing so. This argument not only flies in the face of the statutory language cited elsewhere, but it also suffers from the logical fallacy known variously as “arguing general from the specific” or “hasty generalization.”
D. Constitutional Claims
Plaintiffs’ constitutional arguments rest on the same incomplete characterization of Missouri law as do their statutory arguments. They describe Missouri law as erecting a “voting ban [that] relies not on a specific determination about an individual’s competence to vote, but instead presumes that individuals lack the competence to vote based on about factors
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that are distinct from, and more complex than, the ability to vote.” Memorandum in Support of Plaintiffs’ Motion for Summary Judgment (Doc. # 133) at 33; see also id. at 32 (describing Missouri law as creating a “categorical deprivation” of the right to vote). As noted earlier, this is not an accurate description of Missouri law. A full order of protection may be issued with exceptions, including an exception preserving the right to vote. A partial order of protection may also preserve the right to vote. Regardless of the option employed, the order actually issued is based on the particular circumstances of the person involved and based on an individualized assessment by a judge. This is hardly the categorical or generalized prohibition Plaintiffs would have the Court believe exists.
As a final indicia of the flaw in Plaintiffs’ argument, the Court need look no further than Plaintiff Scaletty’s circumstances (which were alluded to earlier). Scaletty was placed under a full order of protection that specifically reserved his right to vote. Id. at 7. It is true that this aspect of the order was not honored until this suit was filed, but this does not demonstrate a flaw in the process for determining whether Scaletty (or anyone else) has the mental capacity to vote.7 To the contrary, it demonstrates Plaintiffs’ description of Missouri law is inaccurate, and individualized determinations are both permitted and made.

III. CONCLUSION
*8 For these reasons Plaintiffs’ Motion for Summary Judgment (Doc. # 132) is denied and Defendants’ Motion for Summary Judgment (Doc. # 136) is granted.
IT IS SO ORDERED.

Parallel Citations

33 NDLR P 47

Footnotes

1

The Court has not attempted to summarize all the facts advanced by the parties because many of them (including particularly the

generalized observations advanced by Plaintiffs) are not relevant to the governing legal inquiry.

2

There is some authority suggesting that an association may have standing so long as one of the association’s members would have

standing, regardless of whether the individual joins in the suit.

3

In light of the Court’s conclusions regarding the application of these statutes, there is no need to consider Defendants’ alternative

argument that the statutes are unconstitutional.

4

Plaintiffs raise claims under the Americans with Disabilities Act (“ADA”) and the Rehabilitation Act. These statutes are similar in

all pertinent respects and caselaw interpreting one may be used to interpret the other. E.g., Allison v. Department of Corrections, 94

F.3d 494, 497 (8th Cir.1996). In the interests of simplicity and brevity, the Court will focus on the ADA and observe that the

analysis would be the same for the Rehabilitation Act.

5

By way of a crude and obviously unlikely example, the Court has no doubt that a state law prohibiting paraplegics from voting

would violate the ADA. Of course, this observation is purely dicta.

6

The doctrine is named after the Supreme Court’s decisions in Rooker v. Fidelity Trust Co., 263 U.S. 413 (1923) and District of

Columbia Court of Appeals v. Feldman, 460 U.S. 462 (1983).

7

The Court does not wish to minimize the importance of Scaletty’s right to vote. However, state and local officials’ failure to honor

a state court’s order or misunderstanding of the content of state law does not demonstrate the unconstitutionality of the process or

laws that led to the issuance of the order.

6