Appellant's Brief - Franks v. Hubbard

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MISSOURI COURT OF APPEALS EASTERN DISTRICT Appeal No. ED 104797 PENNY V. HUBBARD, Appellant, v.

BRUCE FRANKS, JR., Respondent.

Appeal from the Circuit Court of St. Louis County Hon. Rex Burlison BRIEF OF APPELLANT Jane E. Dueker, #43156 Arthur D. Gregg, #67098 SPENCER FANE LLP 1 N. Brentwood Boulevard, Suite 1000 St. Louis, MO 63105 314-863-7733 (Telephone) 314-862-4656 (Facsimile) jdeuker@spencerfane.com agregg@spencerfane.com Michael J. Colona #42672 COLONA & GENTLE, L.L.C. 4387 Laclede Avenue St. Louis, MO 63108 314-531-1333 (Telephone) 314-531-1011 (Facsimile) mikecolonalaw@gmail.com Attorneys for Appellant SL 2040646.5

TABLE OF AUTHORITIES .............................................................................................. iv JURISDICTIONAL STATEMENT .................................................................................... 1 A.

Stipulated Facts ........................................................................................................ 2

B.

Additional Facts........................................................................................................ 5

C.

In Person Absentee Voting ....................................................................................... 6

POINTS RELIED ON ......................................................................................................... 9 I.

THE TRIAL COURT ERRED ORDERING A NEW ELECTION PURSUANT TO MO. REV. STAT. § 115.549 BECAUSE THE ELECTION BOARD’S FAILURE TO REQUIRE THE USE OF ABSENTEE BALLOT ENVELOPES FOR IN PERSON ABSENTEE VOTING ON ELECTRONIC VOTING SYSTEMS, EVEN IF DEEMED AN IRREGULARITY, IN THE ABSENCE OF FRAUD, WAS NOT OF SUFFICIENT MAGNITUDE TO CAST DOUBT ON THE VALIDITY OF THE INITIAL ELECTION ................................................................................ 9

II.

THE TRIAL COURT ERRED IN ORDERING A NEW ELECTION PURSUANT TO MO. REV. STAT. § 115.549 BECAUSE THE ELECTION BOARD’S USE OF ELECTRONIC VOTING SYSTEMS FOR IN PERSON ABSENTEE VOTING, IN LIEU OF MANDATING THE USE OF ABSENTEE BALLOT ENVELOPES, IS AUTHORIZED

BY MISSOURI LAW AND DOES NOT CONSTITUTE AN “IRREGULARITY” JUSTIFYING A NEW ELECTION..................................... 10 i

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TABLE OF CONTENTS

I.

THE TRIAL COURT ERRED ORDERING A NEW ELECTION PURSUANT TO MO. REV. STAT. § 115.549 BECAUSE THE ELECTION BOARD’S FAILURE TO REQUIRE THE USE OF ABSENTEE BALLOT ENVELOPES FOR IN PERSON ABSENTEE VOTING ON ELECTRONIC VOTING SYSTEMS, EVEN IF DEEMED AN IRREGULARITY, IN THE ABSENCE OF FRAUD, WAS NOT OF SUFFICIENT MAGNITUDE TO CAST DOUBT ON THE VALIDITY OF THE INITIAL ELECTION .............................................................................. 11 A.

Standard of Review ..................................................................................... 11

B.

Ordering a New Election is a Rare and Drastic Remedy ............................ 11

C.

Failing to Use Absentee Ballot Envelopes Even if an Irregularity is Not of Sufficient Magnitude to Cast Doubt on the Validity of the Election ........................................................................................................ 13

D.

Invalidating the Votes of Four Thousand Three Hundred and Sixteen (4,316) Qualified and Registered Voters Because of the Election Board’s Failure to Mandate the Use of Absentee Envelopes Violates the Voting Rights Act, the U.S. Constitution and the Missouri Constitution and is not Mandated by State Law ......................................... 18

II.

THE TRIAL COURT ERRED IN ORDERING A NEW ELECTION PURSUANT TO MO. REV. STAT. § 115.549 BECAUSE THE ELECTION BOARD’S USE OF ELECTRONIC VOTING SYSTEMS ii

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ARGUMENT..................................................................................................................... 11

THE USE OF ABSENTEE BALLOT ENVELOPES, IS AUTHORIZED

BY MISSOURI LAW AND DOES NOT CONSTITUTE AN “IRREGULARITY” JUSTIFYING A NEW ELECTION..................................... 20 A.

In Person Absentee Voting on Electronic Voting Machines Complies with State Law ............................................................................................. 20

CONCLUSION ................................................................................................................. 23 CERTIFICATE OF COMPLIANCE ................................................................................ 25 CERTIFICATE OF SERVICE .......................................................................................... 26

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FOR IN PERSON ABSENTEE VOTING, IN LIEU OF MANDATING

Page(s)

FEDERAL CASES Reynolds v. Sims, 377 U.S. 533 (1964) ................................................................................................. 9, 19 Wesberry v. Sanders, 376 U.S. 1 (1964) ......................................................................................................... 19 STATE CASES Armantrout v. Bohon, 162 S.W.2d 867 (Mo. 1942) .................................................................................... 9, 15 Barks v. Turnbeau, 573 S.W.2d (Mo. App. E.D. 1978) .................................................................. 16, 17, 18 Bd. of Election Comm'rs of St. Louis Cnty. v. Knipp, 784 S.W.2d 797 (Mo. banc 1990) ...................................................................... 9, 11, 15 Gerrard v. Bd. of Election Comm’rs, 913 S.W.2d 88 (Mo. App. E.D. 1995) ............................................................. 11, 12, 15 Marre v. Reed, 775 S.W.2d 951 (Mo banc. 1989) ................................................................................ 11 Missouri Coalition for the Environment, et al v. Joint Committee on Administrative Rules, 948 S.W.2d 125 (Mo. banc 1997) ................................................................................ 22 Page Western, Inc. v. Community Fire Protection Dist., 636 S.W.2d 65 (Mo. banc 1982) ............................................................................ 10, 22 Royster v. Rizzo, 326 S.W.3d 104 (Mo. App. W.D. 2010) ............................................................... passim Sheppard v. East, 192 S.W.3d 518 (Mo. App. E.D. 2006) ....................................................................... 11 Weinschenk v. State, 203 S.W.3d 201 (Mo. banc 2006) ................................................................................ 20 Wright-Jones v. Johnson, 256 S.W.3d 177 (Mo. App. E.D. 2008) ........................................................... 10, 22, 23 iv

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TABLE OF AUTHORITIES

Voting Rights Act of 1965, 52 U.S.C. § 10101(a)(2)(B) [formerly codified as 42 U.S.C. § 1975].............................................................................................................. 18 STATE STATUTES Mo. Rev. Stat. 115.225.4 ................................................................................................... 22 Mo. Rev. Stat. § 115.225.3 .......................................................................................... 20, 21 Mo. Rev. Stat. § 115.225.4 .......................................................................................... 21, 23 Mo. Rev. Stat. § 115.279.4 ................................................................................................ 13 Mo. Rev. Stat. §§ 115.283 ....................................................................................... 1, 13, 17 Mo. Rev. Stat. § 115.283.1 ................................................................................................ 12 Mo. Rev. Stat. § 115.283.5 .......................................................................................... 3, 4, 5 Mo. Rev. Stat. §§ 115.283 and 115.291 ............................................................................ 12 Mo. Rev. Stat. § 115.284 ..................................................................................................... 3 Mo. Rev. Stat. § 115.289 ................................................................................................... 17 Mo. Rev. Stat. § 115.291 ............................................................................................. 17, 18 Mo. Rev. Stat. § 115.291.1 ................................................................................................ 15 Mo. Rev. Stat. § 115.294 ................................................................................................... 17 Mo. Rev. Stat. § 115.295.2 ................................................................................................ 15 Mo. Rev. Stat. § 115.299 ..................................................................................................... 7 Mo. Rev. Stat. §§ 115.299 – 115.300 ................................................................................ 12 Mo. Rev. Stat. §§ 115.303 ................................................................................................... 1 Mo. Rev. Stat. § 115.304 ................................................................................................... 13 Mo. Rev. Stat. § 115.445.3 ................................................................................................ 14 Mo. Rev. Stat. §§ 115.497 and 115.499 ............................................................................ 17

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FEDERAL STATUTES

Mo. Rev. Stat. § 115.549 ................................................................................... 9, 10, 11, 20 Mo. Rev. Stat. § 115.551 ..................................................................................................... 1 Mo. Rev. Stat. § 115.631 ................................................................................................... 13 Mo. Rev. Stat. § 477.050 ..................................................................................................... 1 REGULATIONS 15 C.S.R. 30-10.080 .............................................................................................. 21, 22, 23 CONSTITUTIONAL PROVISIONS Mo. Const. Art. V § 3 .......................................................................................................... 1 Mo. Const. Art. VIII, § 7 ................................................................................................... 19 OTHER AUTHORITIES https://www.stlouis-mo.gov/government/departments/board-electioncommissioners/documents/absentee-ballot-application.cfm ......................................... 7

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Mo. Rev. Stat. §§ 115.527 to 115.601 ............................................................................. 2, 3

This is an appeal from a final judgment of the Circuit Court of St. Louis City entered on September 2, 2016, ordering the St. Louis City Board of Election Commissioners (“Election Board”) to conduct a special election on Friday, September 16, 2016 for the Democratic nomination for the 78th State House District at which voters will choose either Bruce Franks, Jr., or Penny Hubbard as the Democratic nominee to appear on the ballot for the November 8, 2016 General Election. (L.F. 622). The Trial Court found that the Election Board did not comply with Missouri Statutes because they did not require in person absentee voters to complete an absentee ballot envelope pursuant to Mo. Rev. Stat. §§ 115.283 and did not follow the absentee ballot challenge requirements of Mo. Rev. Stat. §§ 115.303. Jurisdiction lies with the Eastern District of Missouri Court of Appeals. See Missouri Constitution, Article V, § 3, Mo. Rev. Stat. §§ 477.050 and 115.551.

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JURISDICTIONAL STATEMENT

A.

Stipulated Facts

The Election Contest was brought pursuant to Mo. Rev. Stat. §§ 115.527 to 115.601, to challenge the results of the August 2, 2016 primary for the Democratic nomination for the 78th District of the Missouri General Assembly (“Primary Election”).

The City of St. Louis Board of Election Commissioners (“Election Board”) conducted the Primary Election. (L.F. 565) Respondent Bruce Franks, Jr., (“Franks”) is a candidate for the 2016 Democratic Party nomination to serve the 78th District in the Missouri House of Representatives; he lives in the District. (L.F. 566) Appellant Penny Hubbard (“Hubbard”) is the incumbent Representative for the 78th District in the Missouri House of Representatives and the candidate declared the winner of the Primary Election; she lives in the District. (Id.) On August 2, 2016, the Board conducted the Primary Election in the City of St. Louis, Missouri. Franks and Hubbard were the only two candidates in the Primary Election. (Id.) There were a total of four thousand three hundred and sixteen (4,316) votes cast in the Primary Election and five hundred and thirty (530) of the total votes cast were cast by absentee ballot. (Id).

One hundred and forty-two (142) of the absentee votes in the Primary Election were cast at the central location of the Election Board. (Id.). Eighty nine (89) of the walk-in absentee votes were cast on a touch screen voting machines and fifty three (53) of the votes were cast on an optical scan voting machines. All one hundred and forty-two 2

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STATEMENT OF FACTS

challenged the counting of these votes by the Election Board. (L.F. 567).

None of the walk-in absentee votes were placed in an absentee ballot envelope and the only challenge to the one hundred and forty-two (142) walk-in votes made by Franks was that the votes were not placed in executed ballot envelopes. (Id.) One hundred and sixty (160) of the absentee votes cast and counted in the Primary Election were from voters who were entitled to vote according to the absentee voting process for the permanently disabled contained in Mo. Rev. Stat. §115.284. 9 (Id.) The parties agree that eight (8) votes – those of Arthur Bucholtz, Edna Jones, Retha Osmack, Tonya Busby, Dorothy Jordan, Molique Patton-Taylor, Dennis Delaney and Carl Lewis – were unlawfully cast and should not have been counted by the Election Board. (Id.).

The Election Board accepted and counted absentee ballots from fifty-seven (57) voters who did not write their full address underneath their signature on the absentee ballot envelope before returning it to the Election Board. (Id.). The Election Board also accepted and counted absentee ballots from eleven (11) voters who received assistance filing out their absentee ballot and their assistant signed the absentee ballot envelope but did not otherwise include a statement similar to the example provided in Mo. Rev. Stat. § 115.283.5. (Id.) No absentee ballots provided by the Election Board included such a statement, and many ballot envelopes in this group state that no notary is required. (L.F. 568).

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(142) of these absentee ballots were counted by the Election Board and Franks

voter whose absentee ballot envelope did not include his full address and also did not include a statement similar to the example provided in Mo. Rev. Stat. § 115.283.5 from the person who assisted him in filling out his ballot (Id.). The absentee ballot received by that voter from the Election Board also stated that no notary was required (Id.).

The Election Board accepted and counted absentee ballots from twenty-one (21) voters who listed on their absentee ballot application that the reason they sought to vote absentee was that they expected to be prevented from going to the polls on Election Day due to “incapacity or confinement due to illness or disability, including a person who is primarily responsible for the physical care of a person who is incapacitated or confined due to illness or disability.” (Id.). Based on the voter’s absentee ballot application, the Election Board sent these voters absentee ballots envelopes that included the statement “No Notary Required.” (Id.) When these ballots were sent back to the Election Board, however, the voter indicated a different reason for voting absentee that did require a notarization of their signature; these voters mailed their ballot envelopes back to the Election Board without being notarized and all twenty-one (21) of these ballots were counted by the Election Board. (L.F. 569) The Election Board accepted and counted absentee ballots from six (6) voters whose stated justification for voting absentee would require notarization of their ballot envelopes, but the absentee ballot envelopes the Election Board sent to them stated that no notary was required (Id.). All six (6) voters filled out signed the absentee ballot envelope provided to them by the Election Board without having them notarized. (Id.) 4

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The Election Board also accepted and counted an absentee ballot from one (1)

Louis City Democratic Party Central Committee Chairman to secure credentials to be a challenger at the Election Board but never received a return call. (Id.). Election Board personnel testified that no one, including representatives from the Franks campaign, were present for either the preparing, announcement, or counting of any of the absentee ballots cast in the Primary Election. (TR. 187). Franks first challenged the Election Board’s failure to use absentee ballot envelopes was in his First Amended Verified Petition filed on August 26, 2016. (L.F. 338).

Franks filed his Verified Petition for Election Contest on August 17, 2016 (L.F. 009) the day after the Election Board announced its official results of the Primary Election and the Hon. Julian Bush set the case for a preliminary hearing five days later on August 22, 2016. (L.F. 330). Hubbard appeared specially on August 22, 2016 to contest personal and subject matter jurisdiction by filing a Motion to Dismiss contending that Franks was not permitted to initiate an election contest until the Secretary of State had certified the results of the election (L.F. 331). Judge Bush agreed and issued an order staying proceedings until the Secretary of State certified the results; the order stated that the Court would deem the Petition for Election Contest filed as of the date of the Secretary of State’s certification. (Id.). The Secretary of State certified the results of the Contested Election on August 25, 2016. (L.F. 570). In total, Franks challenged that two hundred and thirty-eight (238) votes were wrongfully counted by the Election Board.

B.

Additional Facts

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Prior to the deadline for requesting challengers, Franks made one call to the St.

(L.F. 001), the Trial Court found that “no credible evidence was presented from which this Court could find that any voter fraudulently cast a vote in this case.” (L.F. 610). The Trial Court also found “the absentee voters in the August 2, 2016 election did everything they were told to do by election officials and staff.” (Id.). And, the Trial Court found that any error or irregularity was “solely the responsibility of the City of St. Louis Board of Election Commissioner.” (Id.).

C.

In Person Absentee Voting

Former Election Board Chairman, the Hon. Judge Joan Burger, testified at trial that the Election Board has been allowing in person absentee voting for ten (10) years using both optical scan and Direct Recording Electronic (“DRE”) voting systems. (TR. 135). 1

Election Board Democratic Absentee Supervisor Coordinator, Pamela Lake,

testified that the following steps are taken by Election Board employees for all voters wishing to cast an absentee ballot in person: (1) the voter fills out the absentee ballot application form; 2 (2) a bipartisan team of election judges confirms the identity of the

1

The Hon. Joan Burger was Chairman of the Election Board, serving on an expired term,

during the Primary Election and the trial. On September 6, 2016 Governor Jay Nixon replaced the Chair and named a replacement for one other Election Board commissioner serving on an expired term.

2

This absentee ballot application available at the Election Board for in person absentee

voting is the same absentee ballot application form sent to individuals on the permanently 6

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After the trial of this matter held on August 31, 2016 through September 1, 2016

voter’s signature on the absentee ballot application against the signature on file in the Missouri Consolidated Voter Registration (“MCVR”) System; (4) the voter is given the option of voting electronically on a DRE “touchscreen” or using an optical scan paper ballot; and (5) the voter’s qualifications are checked by Election Board employees who are authorized to challenge voter’s qualifications. (TR. 192 – 200.).

Election Board personnel also testified about how records of in person absentee ballots are kept at the Election Board. (TR. 148). A record of all voters casting an absentee ballot is kept in a “poll book” at the Election Board. (Id). The poll books (Exh. 10 and 11), contains a record of whether or not a voter cast their absentee ballot through the mail, or as a walk in, and contains the date the ballot was received by the Election Board or the date it was cast in person. (Id.). The poll book is generated five (5) days before Election Day and an updated poll book is printed each day, reflecting new absentee ballots received or cast in person. (TR. 152). The poll books are used to by the bi-partisan teams of election judges that open, review and count absentee ballots beginning five (5) days prior to Election Day. (TR 163). The poll book is also used to track in person absentee voters and is used to call out the in person absentee voters’ name in a clear voice pursuant to Mo. Rev. Stat. § 115.299. (TR. 283). The poll book is

disable list and available on the Election Board website. (TR. 194). A copy of the form is available at https://www.stlouis-mo.gov/government/departments/board-electioncommissioners/documents/absentee-ballot-application.cfm 7

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voter by checking a valid form of identification; (3) the Election Board compares the

absentee voters absentee ballot application, in lieu of an absentee ballot envelope, during the absentee ballot counting process. (TR. 282 – 283).

Election Board personnel also testified that the DRE voting machines used by the Election Board contain a paper receipt of each voter’s electronically cast ballot that is stored in a sealed canister within the voting machine. (TR. 284).

Election Board personnel also testified that they did not receive on single complaint from a voter about anyone showing up at their polling location on Election Day only to find out that an absentee ballot had already been cast in their name. (TR. 106 and 273).

Hubbard timely filed her notice of appeal on September 6, 2016. (L.F. 596).

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reviewed by the bi-partisan team of election judges in conjunction with an in person

I. THE TRIAL COURT ERRED ORDERING A NEW ELECTION PURSUANT TO MO. REV. STAT. § 115.549 BECAUSE THE ELECTION BOARD’S FAILURE TO REQUIRE THE USE OF ABSENTEE BALLOT ENVELOPES FOR IN PERSON ABSENTEE VOTING ON ELECTRONIC VOTING SYSTEMS, EVEN IF DEEMED AN IRREGULARITY, IN THE ABSENCE OF FRAUD, WAS NOT OF SUFFICIENT MAGNITUDE TO CAST DOUBT ON THE VALIDITY OF THE INITIAL ELECTION. Royster v. Rizzo, 326 S.W.3d 104 (Mo. App. W.D. 2010) Armantrout v. Bohon, 162 S.W.2d 867 (Mo. 1942).

Bd. of Election Comm'rs of St. Louis Cnty. v. Knipp, 784 S.W.2d 797 (Mo. banc 1990).

Reynolds v. Sims, 377 U.S. 533 (1964).

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POINTS RELIED ON

PURSUANT TO MO. REV. STAT. § 115.549 BECAUSE THE ELECTION BOARD’S USE OF ELECTRONIC VOTING SYSTEMS FOR IN PERSON ABSENTEE VOTING, IN LIEU OF MANDATING THE USE OF ABSENTEE BALLOT ENVELOPES, IS AUTHORIZED BY MISSOURI LAW AND DOES NOT CONSTITUTE AN “IRREGULARITY” JUSTIFYING A NEW ELECTION. Wright-Jones v. Johnson, 256 S.W.3d 177 (Mo. App. E.D. 2008) Page Western, Inc. v. Community Fire Protection Dist., 636 S.W.2d 65 (Mo. banc 1982).

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II. THE TRIAL COURT ERRED IN ORDERING A NEW ELECTION

I.

THE

TRIAL

COURT

ERRED

ORDERING

A

NEW

ELECTION

PURSUANT TO MO. REV. STAT. § 115.549 BECAUSE THE ELECTION BOARD’S FAILURE TO REQUIRE THE USE OF ABSENTEE BALLOT ENVELOPES FOR IN PERSON ABSENTEE VOTING ON ELECTRONIC VOTING SYSTEMS, EVEN IF DEEMED AN IRREGULARITY, IN THE ABSENCE OF FRAUD, WAS NOT OF SUFFICIENT MAGNITUDE TO CAST DOUBT ON THE VALIDITY OF THE INITIAL ELECTION. A.

Standard of Review

The decision of the trial court must be affirmed “unless there is no substantial evidence to support it, unless it is against the weight of the evidence, or unless it erroneously declares or applies the law. Marre v. Reed, 775 S.W.2d 951, 952 (Mo banc.

1989). Questions of law are reviewed de novo. Sheppard v. East, 192 S.W.3d 518, 522 (Mo. App. E.D. 2006).

B.

Ordering a New Election is a Rare and Drastic Remedy

The Missouri Supreme Court has repeatedly made clear that a new election is a “drastic remedy.” Bd. of Election Comm’rs of St. Louis Cnty. v. Knipp, 784 S.W.2d 797, 798 (Mo. banc 1990). A new election “is appropriate [only] where the validity of the entire election is under suspicion” because a “new election tosses aside the aggregate of the citizens’ votes, both those properly and improperly cast.” Knipp, 784 S.W.2d at 798; see also Gerrard v. Bd. of Election Comm’rs, 913 S.W.2d 88, 90 (Mo. App. E.D. 1995).

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ARGUMENT

election should an election be voided.” Id. The Trial Court reasoned that one hundred and forty-two (142) in person absentee ballots should be invalidated because the Election Board failed to follow the statutory requirements of Mo. Rev. Stat. §§ 115.283 and 115.291 because it did not require in person absentee voters to place their voted ballots in a completed absentee ballot envelope pursuant to Mo. Rev. Stat. § 115.283.1. (L.F. 615).

The Trial Court specifically focused on the portion of Mo. Rev. Stat. § 115.283.1 which states that the voter “shall also state under penalties of perjury” that the voter is qualified to vote in the election and that all information contained in the statement on the absentee ballot envelope is true. (Id.). However, Election Board personnel testified that in person absentee voters fill out and sign absentee ballot application form which is used in the place of an absentee ballot envelope to verify the voter’s identity and signature and is used to announce a voters name for challenge by the bipartisan team of election judges during preparation and counting of absentee ballots pursuant to Mo. Rev. Stat. §§ 115.299 – 115.300. (TR. 282 – 283). While form does not contain the exact words “under penalty of perjury” mentioned in Mo. Rev. Stat. § 115.283.1, it does say the following: PENALTY FOR VIOLATION: ANY PERSON WHO KNOWINGLY MAKES, DELIVERS OR MAILS A FRAUDULENT ABSENTEE BALLOT APPLICATION SHALL BE GUILTY OF A CLASS ONE ELECTION OFFENSE PUNISHABLE, UPON CONVICTION, BY 12

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“Only when the trial court is firmly convinced irregularities affected the outcome of the

THAN $2,500.

Making a false statement on an absentee ballot application is class one election offense pursuant to Mo. Rev. Stat. § 115.279.4 3. Likewise, pursuant to Mo. Rev. Stat. § 115.304, any violation of the absentee voting laws, including Mo. Rev. Stat. § 115.283, constitutes a class one election offense. Therefore, falsifying the absentee ballot envelope and absentee ballot application has the same legal consequences under the provisions of Chapter 115. Accordingly, the difference between a signed absentee ballot application and a signed absentee ballot envelope is really a distinction without a legal difference.

C.

Failing to Use Absentee Ballot Envelopes Even if an Irregularity is Not of Sufficient Magnitude to Cast Doubt on the Validity of the Election

The Trial Court found that the failure of the Election Board to use absentee ballot envelopes was an irregularity that affected the outcome of the election and that the irregularities were more than “petty procedural infirmities but abuses of the election law which cannot be ignored.” (L.F. 621). This conclusion seems to contradict the Trial Court’s specific finding that the Election Board’s statutory failures did not result in one

3

A class one election offense is a felony connected with the exercise of suffrage, which

permanently disenfranchise the offender. Conviction of a class one election offense is punishable by imprisonment of not more than five years and/or by a fine of not less than $2,500 but not more than $10,000. See Mo. Rev. Stat. § 115.631.

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IMPRISONMENT OF UP TO 5 YEARS AND/OR A FINE OF NO LESS

candidate not of the voter’s choosing. (L.F. 610).

However, Missouri Courts have upheld election results in election contest cases for more egregious irregularities, especially when the irregularity is the fault of the local election authority, not the voter, as is the case here. In Royster v. Rizzo, 326 S.W.3d 104 (Mo. App. W.D. 2010), the court denied the election contest brought by a state representative candidate in a primary election by one vote. Id. at 107. The contestant in Rizzo, alleged voting irregularities that he claimed violated Missouri state law. Id. His main allegations were that non-English speaking voters received unlawful assistance or instructions on how to vote and that the local election authority failed to follow state laws. In Rizzo, the court found that non-English speaking voters, failed to take the requisite oath, required under Mo. Rev. Stat. § 115.445.3 prior to getting assistance casting their ballot. Id at 114. The court found that the failure to administer the required oath was the fault of the election judges, not the voter, and said that the contestant “failed to demonstrate that the trial court erred in concluding that all of these voters were registered and voted for whom the individual chose without any illegal or fraudulent interference.” Id. In Rizzo, the court overlooked a clear violation of statutory requirements of Chapter 115. The court reasoned, “[P]articularly where it is a mistake of an election official, the irregularity should not result in the disenfranchisement of the voters.” Id at 115. (quoting Elliot v. Hogan, 315 S.W.2d 840, 846 (Mo. App. E.D. 1958). The court also said, “The well-established rule, here applicable, is that an election irregularity is not 14

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vote being cast by an unqualified or unregistered voter or a single vote being cast for a

the subject or unless the irregularity is such as probably prevented a free and full expression of the popular will.” Id. at 111 (quoting Kasten v. Guth, 395 S.W.2d 433, 435 (Mo. banc 1965)).

In both Rizzo, where voters received unlawful assistance casting ballots, and here, where statements on an absentee ballot envelopes were not completed, the remedy is the same; the ballot should be rejected. See Mo. Rev. Stat. § 115.291.1 (assisting a voter) and Mo. Rev. Stat. § 115.295.2 (completed envelope statements). Like in Rizzo, the absentee votes cast by otherwise qualified voters should be counted and the election should not be overturned because “the general rule is that an election will not be annulled in the absence of fraud, even if some technical provisions of the law are not strictly followed.”

Armantrout v. Bohon, 162 S.W.2d 867, 871 (Mo. 1942). Further, a new election, as was ordered here, is a “drastic remedy” and “is appropriate [only] where the validity of the entire election is under suspicion” because a “new election tosses aside the aggregate of the citizens’ votes, both those properly and improperly cast.” Knipp, 784 S.W.2d at 798; see also Gerrard v. Bd. of Election Comm’rs, 913 S.W.2d 88, 90 (Mo. App. E.D. 1995).

“Only when the trial court is firmly convinced irregularities affected the outcome of the election should an election be voided.” Id. In this matter, the Trial Court actually found that there was (1) no evidence of any fraudulently cast votes; (2) absentee voters did everything they were told to do by the Election Board; and (3) any errors or irregularities were solely the responsibility of the Election Board. (L.F. 610). The Trial Court also stated that as it relates to absentee 15

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fatal to the validity of the whole return of the precinct unless made so by the statute on

but must be specifically followed.� (L.F. 620). However, the seminal election contest cases of the State of Missouri, disagree with the draconian application of form over substance that takes away this most fundamental civil right of four thousand three hundred and sixteen (4,316) voters that did everything that was asked of them by the Election Board. 4 Both the Trial Court and Franks relied on the holding in Barks v. Turnbeau, 573 S.W.2d (Mo. App. E.D. 1978) to support their hyper-technical argument that a failure to comply with the laws governing the use of the absentee ballot process is grounds for a new election. (L.F. 352, 584, 593). The egregious violations of the absentee balloting statutes in Barks, however, prevented anyone from determining whether the alleged votes were actually cast by qualified voters.

Id. Because the number of untraceable and

unverifiable alleged votes exceeded the margin of victory and a recount was impossible, a new election was the courts only option.

In Barks, the court affirmed the trial courts order for a new election in a countywide election for a proposition to increase a school tax levy in Madison County, Missouri. Id. at 678. The vote passed by three hundred and fifty (350) to one hundred and sixty six (166), which is six votes more than the two-thirds majority that was required

4

On May 4, 2016 the Missouri General Assembly passed HB 1480, which was signed by

the Governor on July 7, 2016. This bill clarifies existing authority relating to absentee ballots and electronic voting systems. HB 1480 is effect January 1, 2018.

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voting, “tedious and specific statutory provisions cannot be ignored, nor circumvented,

were in favor of the proposition. Plaintiffs sought a new election due to irregularities in the absentee voting process, including: (1) only four (4) of sixty six (66) absentee voters applied for absentee ballots in writing, the rest made no application at all; (2) the election authority failed to compile a list of absentee voters as required by Mo. Rev. Stat. § 115.289; (3) the clerk failed to note the receipt of absentee ballots; (4) the printed affidavits on the absentee ballot envelope did not conform with Mo. Rev. Stat. § 115.283 because they did not require the voter to declare under penalty of perjury the reason why he or she would be prevented from going to the polls on election day; (5) forty-eight (48) of seventy (70) absentee voters failed to specify a reason for voting absentee in violation of Mo. Rev. Stat. § 115.283;

5

(6) two ballots were included in one absentee ballot

envelope; (7) sixty (66) of seventy-seven (77) voters did not return their ballots under one of the methods authorized in Mo. Rev. Stat. § 115.291 and many ballots were returned to the election authority by school board officials; (8) four individuals who were neither employed by the election authority or deputized were allowed to handle absentee ballots; (9) the election authority failed to convene a verification board and certify the results in violation of Mo. Rev. Stat. §§ 115.497 and 115.499. Id. at 681.

5

Mo. Rev. Stat. § 115.294, adopted in 1989, in response to Barks, provides: Other

provisions of law to the contrary notwithstanding, no absentee ballot shall be rejected for failure of the voter to state on the ballot envelope his reason for voting an absentee ballot.

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for approval of the tax levy. Id. There were 70 absentee votes cast in the election and 66

comparison to the litany of violations by the Election Authority in Barks. Accordingly, the precedent set in Rizzo, which addresses technical violations of the election authority, is the more appropriate analysis to apply to this case.

D.

Invalidating the Votes of Four Thousand Three Hundred and Sixteen (4,316) Qualified and Registered Voters Because of the Election Board’s Failure to Mandate the Use of Absentee Envelopes Violates the Voting Rights Act, the U.S. Constitution and the Missouri Constitution and is not Mandated by State Law

The Voting Rights Act of 1965, 52 U.S.C. § 10101(a)(2)(B) [formerly codified as 42 U.S.C. § 1975] states: No person acting under color of law shall deny the right of any individual to vote in any election because of an error or omission on any record or paper relating to any application, registration, or other act requisite to voting, if such error or omission is not material in determining whether such individual is qualified under State law to vote in such election…(Emphasis Added).

The Trial Court’s invalidation of one hundred and forty-two (142) in person absentee votes for “tedious and specific statutory provisions,” namely, not complying with the absentee ballot envelope requirement of Mo. Rev. Stat. § 115.291, due to a technical error by the Election Board is a clear violation of the Section 2(B) of the Voting Rights Act of 1965 which prohibits denying individuals the right to vote due to “an error 18

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The failure of the Election Board to use absentee ballot envelopes pales in

requisite to voting…”

Further, the United States Supreme Court has repeatedly stated that the right to vote is a protected constitutional right. In Wesberry v. Sanders, 376 U.S. 1, 17 (1964) the Court said, “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.” Additionally, the Court said, “The right to vote freely for the candidate of one’s choice is of the essence of a democratic society, and any restrictions on that right strike at the heart of representative government.” Reynolds v. Sims, 377 U.S. 533, 555 (1964).

Additionally, the Missouri Constitution, Article VIII, § 7 states, “[q]ualified electors of the state who are absent, whether within or without the state, may be enabled by general law to vote at all elections by the people.” This provision of the Missouri Constitution clearly shows that absentee voting is a constitutional right in the State of Missouri. Denying absentee voters of their right to vote due to perceived procedural errors would disenfranchise absentee voters.

“The right to vote is protected by the Equal Protection Clause of the Fourteenth Amendment and “is subject to the imposition of state standards which are not discriminatory and which do not contravene any restriction that Congress, acting pursuant to its constitutional powers, has imposed.’” Rizzo v. Royster, 326 S.W.3d 104 (Mo. App. W.D. 2010) (quoting Harper v. Va. State Bd. of Elections, 383 U.S. 663, 665 (1966) (quoting Lassiter v. Northampton Cnty. Bd. of Elections, 360 U.S. 45, 51, (1959)).

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or omission on any record or paper relating to any application, registration or other act

the right to vote is fundamental to Missouri citizens.” Weinschenk v. State, 203 S.W.3d 201, 211 (Mo. banc 2006). Indeed, “[d]ue to the more expansive and concrete protections of the right to vote under the Missouri Constitution, voting rights are an area where our state constitution provides greater protection than its federal counterpart.” Id. at 212.

Invalidating not only the one hundred and forty-two (142) in person absentee votes cast, but also the entire election, due to technical errors by the Election Board violates 78th District qualified voters’ constitutional rights to vote under both the United States and Missouri Constitutions.

II.

THE TRIAL COURT ERRED IN ORDERING A NEW ELECTION PURSUANT TO MO. REV. STAT. § 115.549 BECAUSE THE ELECTION BOARD’S USE OF ELECTRONIC VOTING SYSTEMS FOR IN PERSON ABSENTEE VOTING, IN LIEU OF MANDATING THE USE OF ABSENTEE BALLOT ENVELOPES, IS AUTHORIZED BY MISSOURI LAW

AND

DOES

NOT

CONSTITUTE

AN

“IRREGULARITY”

JUSTIFYING A NEW ELECTION. A.

In Person Absentee Voting on Electronic Voting Machines Complies with State Law

Pursuant to Mo. Rev. Stat. § 115.225.3: The secretary of state shall promulgate rules and regulations to allow the use of a computerized voting system. The procedures shall provide for the use of a computerized voting system with the ability to provide a paper 20

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Moreover, the Missouri Constitution establishes “with unmistakable clarity that

such a system may allow for the storage of processed ballot materials in an electronic form. (Emphasis Added).

Based on the statutory authority to make rules granted by Mo. Rev. Stat. § 115.225.3, the Secretary of State has specifically promulgated a rule allowing electronic voting in 15 C.S.R. 30-10.080, which states “[a]ll jurisdiction using electronic data processing tabulation systems may conduct absentee balloting by the same means. The requirements of Chapter 115, RSMo shall be followed.” (Emphasis added).

This

regulation, in conjunction with Mo. Rev. Stat. § 115.225.4, authorizes the Election Board to use computerized voting systems, such as DRE and optical scan ballots, for voters to cast absentee ballots and allows for the storage of processed ballot materials in electronic form.

At trial, Election Board officials specifically pointed to 15 C.S.R. 30-10.080 as their authorization to use touch screen voting machines and optical scan voting machines for absentee voting. (TR 125-126). 15 C.S.R. 30-10.080 states “[a]ll jurisdiction using electronic data processing tabulation systems may conduct absentee balloting by the same means. The requirements of Chapter 115, RSMo shall be followed.” (Emphasis added).

The Trial Court, said in its order, “[t]he Board cannot rely on 15 CSR 30-10.080 to expand or modify the statutes at issue to allow for absentee voting without the use of ballot envelopes. ‘If a regulation is inconsistent with a statute, it is the statute, not the regulation, that this Court will apply.’” (citation omitted).

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audit trail. Notwithstanding any provisions of this chapter to the contrary,

specifically promulgated by the Secretary of State to allow absentee voting to occur using electronic voting machines. This rule was promulgated pursuant to the authority granted to the Secretary of State by Mo. Rev. Stat. 115.225.4, which states: The secretary of state shall promulgate rules and regulations to allow the use of a computerized voting system. The procedures shall provide for the use of a computerized voting system with the ability to provide a paper audit trail. Notwithstanding any provisions of this chapter to the contrary, [the envelope requirement] such a system may allow for the storage of processed ballot materials in an electronic form.

(Emphasis added).

It is well settled that properly promulgated rules have the “force and effect of law.” Page Western, Inc. v. Community Fire Protection Dist., 636 S.W.2d 65, 68 (Mo. banc 1982). Also See, Missouri Coalition for the Environment, et al v. Joint Committee on Administrative Rules, 948 S.W.2d 125, 133 (Mo. banc 1997). The Election Board simply had no authority or duty to ignore a state regulation.

This Court in Wright-Jones v. Johnson, 256 S.W.3d 177, 178 (Mo. App. E.D. 2008), stated in a case challenging a candidates qualifications that “the right to contest an election is conferred by statute only; it is not a common law or equitable right.” Id at 180. (quoting Missouri ex rel. Bouchard v. Grady, 86 S.W.3d 121, 123 (Mo. App. E.D. 2002)). This Court also stated, “the court may only grant relief that is specifically authorized by the election contest statutes.” Id. at 181. The Trial Court had no authority 22

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Here, the Trial Court essentially invalidated 15 C.S.R. 30-10.080, a rule

election contest. This is especially true when neither of the parties requested such a remedy and the State of Missouri was provided no opportunity to defend the regulation or the enabling statute which provided authority for the regulation.

Mo. Rev. Stat. § 115.225.4 in conjunction with 15 C.S.R. 30-10.080 authorizes the Election Board to use computerized voting systems, such as DRE and optical scan ballots, for voters to cast absentee ballots and allows for the storage of processed ballot materials in electronic form. This Court’s holding in Wright-Jones, clearly states that the Trial Court may only grant relief that is specifically authorized by the election contest statutes. Wright-Jones at 181. In this instance, the Trial Court lacked the jurisdiction or authority under Chapter 115 to invalidate a rule promulgated by the Secretary of State.

CONCLUSION For all of the foregoing reasons, we request that the Court reverse the Trial Court’s Order in favor of Respondent Bruce Franks, Jr. that the St. Louis City Board of Election Commissioners conduct a special primary election on Friday, September 16, 2015.

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to grant a declaratory judgment regarding the validity of a state regulation within an

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Respectfully submitted, SPENCER FANE LLP /s/ Jane E. Dueker Jane E. Dueker, MO #43156 Arthur D. Gregg, MO #67098 1 N. Brentwood Blvd., Suite 1000 St. Louis, Missouri 63105 (314) 863-7733 Telephone (314) 862-4656 Facsimile jdueker@spencerfane.com agregg@spencerfane.com Counsel for Penny Hubbard Michael J Colona, MO #42672 COLONA & GENTLE, L.L.C. 4387 Laclede Avenue St. Louis, MO 63108 314-531-1333 mikecolonalaw@gmail.com Co-Counsel for Penny Hubbard

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I hereby certify, pursuant to Supreme Court Rule 84.06(c), that this Brief of Appellant complies with Rule 55.03, and with the limitations contained in Rule 84.06(b) and Eastern District Special Rule 360, in that it contains 6,300 words, excluding the cover page, the signature block, Certificate of Service and this Certificate, as determined by the Microsoft Word 2010 word-counting system.

SPENCER FANE LLP /s/ Jane E. Dueker Jane E. Dueker, MO #43156 Arthur D. Gregg, MO #67098 1 N. Brentwood Blvd., Suite 1000 St. Louis, Missouri 63105 (314) 863-7733 Telephone (314) 862-4656 Facsimile jdueker@spencerfane.com agregg@spencerfane.com Counsel for Appellant Penny Hubbard Michael J Colona, MO #42672 COLONA & GENTLE, L.L.C. 4387 Laclede Avenue St. Louis, MO 63108 314-531-1333 mikecolonalaw@gmail.com Co-Counsel for Appellant Penny Hubbard

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CERTIFICATE OF COMPLIANCE

I hereby certify that on the 8th day of September, 2016, the foregoing was filed electronically with the Clerk of the Court to be served by operation of the Court’s electronic filing system on all counsel of record. In addition, a copy of the foregoing was sent via e-mail to the following: DAVID ROLAND #60548 14779 Audrain Road 815 Mexico, MO 65265 Tel: 314-604-6621 Fax: 573-562-6122 Email: libertyandjustice@gmail.com /s/ Jane E. Dueker

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CERTIFICATE OF SERVICE