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IMMUNITY - No 11th Amendment immunity in right to vote case

*The HONORABLE SANDRA DAY O'CONNOR, Associate Justice, Supreme
Court of the United States (Ret.), sitting by designation.
United States Court of Appeals
No. 06-3014
Missouri Protection and Advocacy *
Services, Inc., et al., *
Plaintiffs - Appellants, **
v. * Appeal from the United States
* District Court for the
Robin Carnahan, in her official * Western District of Missouri.
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. *
Submitted: February 12, 2007
Filed: August 23, 2007
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
1The HONORABLE ORTRIE D. SMITH, United States District Judge for the
Western District of Missouri
2As 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.
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 courtordered
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 court1 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 . . . shall be entitled to vote. This prohibition has a long history.2 The
Missouri 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
3In 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.
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 -- that Missouri's election
laws must be liberally construed in aid of the right of suffrage, Nance v. Kearbey,
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 court3 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:
4The parties agree that the ban on voting in 115.133.2 is a legal disability
within the meaning of 475.078.2.
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 his 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 Missouris 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 States 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 -- the
county clerk or the local board of election commissioners -- the 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 ineligible -- which presumably would
include persons under guardianship due to mental incapacity -- can 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 (1969). The Court's concern with these difficult issues is understandable, though
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 (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 (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 (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 (1965) (categorical disenfranchisement of residents in the military invalid);
Kramer, 395 U.S. at 632-33, and Cipriano v. City of Houma, 395 U.S. 701, 704-706
(1969) (limiting right to vote in local elections to those with special interests invalid);
Evans v. Cornman, 398 U.S. 419 (1970) (disenfranchising residents of a federal
enclave invalid); compare Dunn v. Blumstein, 405 U.S. 330, 360 (1972) (one year and
three-month durational residence requirements invalid), with Marston v. Lewis, 410
U.S. 679 (1973) (fifty-day durational residence requirement valid). By contrast, in
Richardson v. Ramirez, 418 U.S. 24, 55 (1974), the Court rejected a challenge to
California laws denying ex-felons 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
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 not withstand close
equal protection scrutiny when challenged, for example, by a person whose guardian
was appointed solely because of a physical disability. However, as the district court
5The 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 wards 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 wards right to vote).
6MOPAS 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.
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 wards 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 organizations 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 (1977).
The third requirement is a prudential limitation on standing that may be abrogated by
Congress, not an element of the case or controversy limitation on federal judicial
power contained in Article III of the Constitution. United Food & Commercial
Workers Union Local 751 v. Brown Group, Inc., 517 U.S. 544, 557 (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 because -
7Congress 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.
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. 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
8The 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 (2004), criticizing, though not in constitutional terms, state laws
categorically disqualifying idiots from voting; Richardson v. Ramirez 418 U.S. at
86 (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 (1973).
appoint a guardian -- that a person is unable to receive and evaluate information or
communicate decisions -- 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
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 decisionmaking
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
Defendants argue that Scalettys 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 -- a defendants 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. Dept of Health
& Human Res., 532 U.S. 598, 609 (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 (1983). Second, Scaletty was not injured by
the alleged facial flaws in the Missouri regime -- his guardianship order expressly
preserved his right to vote -- and he has no standing to assert the claims of others. See
Lewis v. Casey, 518 U.S. 343, 357-60 (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 (2002). In arguing that Missouris 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 -- voting -- on the basis of a disability -- lack of self-care ability -- 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
(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 (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 (1985). In
Tennessee v. Lane, 541 U.S. at 532, 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 -- an issue we need not decide -- 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 that MOPAS lacks associational
standing to assert non-categorical equal protection and statutory claims absent
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.


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