CASE STUDIES IN EMERGENCY ELECTION LITIGATION

Federal Judicial Center 7/22/2023 1

Different Rules for Excuse-Based Absentee Voting 

and Pandemic-Related Mail Voting 

Organization for Black Struggle v. Ashcroft 

(Brian C. Wimes, W.D. Mo. 2:20-cv-4184) 

A district judge determined that it was not proper to require voters 

who were voting by mail because of social distancing made necessary 

by an infectious pandemic to mail in their ballots while allowing voters voting absentee because of another excuse to hand-deliver their 

ballots. The judge did not enjoin rejection of mailed-in ballots with 

errors even without notice and opportunities to cure the errors. The 

court of appeals stayed the district judge’s injunction, finding reasonable a decision not to expand opportunities for hand-delivering 

ballots before election day during a pandemic. 

Subject: Absentee and early voting. Topics: Early voting; 

absentee ballots; equal protection; Covid-19; interlocutory appeal; 

class action. 

At a time when opportunities to vote by mail in Missouri were expanded because of social distancing made necessary by the global Covid-19 infectious 

pandemic, five organizations filed a federal complaint on Thursday, September 17, 2020, in the Western District of Missouri against state and county election officials challenging (1) electronic acceptance of excuse-based absenteeballot requests but not pandemic-related mail-ballot requests, (2) rejection of 

ballots for immaterial technicalities, and (3) lack of mandatory opportunities 

to cure technical defects.1

 With their complaint, the plaintiffs filed a motion to 

certify a class of 116 local election authorities.2 Two days later, the plaintiffs 

filed a motion for a temporary restraining order and a preliminary injunction.3

On Monday, Judge Brian C. Wimes set the case for a telephonic status conference on the following Thursday, providing contact information to counsel 

by email.4

Judge Wimes granted the plaintiffs some relief on October 9.5

The Court recognizes Plaintiffs’ argument is somewhat counter-intuitive. Plaintiffs are seeking the opportunity for remote voters, who were 

1. Complaint, Org. for Black Struggle v. Ashcroft, No. 2:20-cv-4184 (W.D. Mo. Sept. 17, 

2020), D.E. 1; Org. for Black Struggle v. Ashcroft, 493 F. Supp. 3d 790, 795 (W.D. Mo. 2020); 

see Kurt Erikson, With Early Voting Underway, Missouri Facing a Trio of Lawsuits Over MailIn Ballots, St. Louis Post-Dispatch, Sept. 24, 2020, at A6. 

2. Class-Certification Motion, Org. for Black Struggle, No. 2:20-cv-4184 (W.D. Mo. Sept. 

17, 2020), D.E. 5. 

3. Injunction Motion, id. (Sept. 19, 2020), D.E. 23; see Org. for Black Struggle v. Ashcroft, 

978 F.3d 603, 605 (8th Cir. 2020). 

4. Docket Sheet, Org. for Black Struggle, No. 2:20-cv-4184 (W.D. Mo. Sept. 17, 2020) [hereinafter W.D. Mo. Docket Sheet] (D.E. 26). 

5. Org. for Black Struggle, 493 F. Supp. 3d 790; see Kurt Erickson, Federal Court Orders 

Change to Mail-In Voting While Missouri’s High Court Affirms Law, St. Louis Post-Dispatch, 

Oct. 10, 2020, at A1. 
Different Rules for Excuse-Based Absentee Voting and Pandemic-Related Mail Voting 

2 Federal Judicial Center 7/22/2023 

hoping to avoid exposure to the coronavirus by voting remotely, to go to the 

polling places those voters were trying to avoid. However, allowing all remote 

voters to deliver his or her completed ballot in person to the [local election 

authority (LEA)] provides for all remote voters, and not just those eligible to 

vote absentee, to avoid the potential risk of coronavirus that they might otherwise not be able to avoid at their polling place on election day. 

In sum, considered alone, requiring a remote voter to put a ballot in a 

mailbox does not sound like a particularly arduous or severe burden. However, Defendants have presented no reasonable justification for different 

treatment of remote voters. On this basis, because the right to vote is at issue 

and the risk is total disenfranchisement even if the voter does everything 

right, and because the Defendants already have a scheme in place to accommodate remote ballots, the Court finds Plaintiffs likely to succeed on the merits of Count I as it relates to the manner in which remote ballots can be returned to the election authority.6

But Judge Wimes denied relief from requirements that mailed ballots be 

submitted without errors, because voters do not have a constitutionally protected right to vote by mail.7

Because of the nearness of the November 3 election, he required Missouri’s 

election officials to accept remote ballots in person but not remote-ballot applications.8

He stayed his injunction pending appellate review,9 and the court of appeals stayed the injunction on October 23 by a vote of two to one.10 The majority concluded that it was reasonable for the state to grant expanded opportunities to vote by mail while limiting personal contact between voters and 

election officials.11 The court of appeals granted a joint motion to dismiss the 

appeal a month after the election.12

In 2021, Judge Wimes dismissed an amended complaint in large part because the election was over.13

6. Org. for Black Struggle, 493 F. Supp. 3d at 801–02. 

7. Id. at 802–05. 

8. Id. at 805–06. 

9. W.D. Mo. Docket Sheet, supra note 4 (D.E. 68); see Federal Judge Delays Order on Missouri’s Mail-In Ballots While Ashcroft Appeals, St. Louis Post-Dispatch, Oct. 11, 2020, at A2. 

10. Org. for Black Struggle v. Ashcroft, 978 F.3d 603 (8th Cir. 2020); see Kurt Erickson, 

Missouri Voters Must Return Mail-In Ballots Via the Postal Service Under New Court Ruling, 

St. Louis Post-Dispatch, Oct. 23, 2020, at A6. 

11. Org. for Black Struggle, 978 F.3d at 608. 

12. Judgment, Org. for Black Struggle v. Ashcroft, No. 20-3121 (8th Cir. Dec. 4, 2020). 

13. Judgment, Org. for Black Struggle v. Ashcroft, No. 2:20-cv-4184 (W.D. Mo. Sept. 28, 

2021), D.E. 121; Opinion, id. (Sept. 28, 2021), D.E. 120; W.D. Mo. Docket Sheet, supra note 4 

(noting permission to join a dismissal motion by Greene County’s clerk granted to St. Charles 

County and St. Louis County election officials, D.E. 116); Opinion, Org. for Black Struggle, No. 

2:20-cv-4184 (W.D. Mo. Mar. 12, 2021), D.E. 113 (allowing Jackson County election officials 

to join the Greene County motion); Opinion, id. (Mar. 9, 2021), D.E. 112, 2021 WL 1318011 

(granting a dismissal motion by Missouri’s secretary of state); see Amended Complaint, id.

(Dec. 9, 2020), D.E. 84.