Respondent's brief filestamped

IN THE MISSOURI COURT OF APPEALS, EASTERN DISTRICT

BRUCE FRANKS, JR., Contestant-Respondent, v.

PENNY HUBBARD, Contestee-Appellant. ________________________________________________________________ APPEAL FROM THE TWENTY-SECOND CIRCUIT COURT The Honorable Rex Burlison, Judge ________________________________________________________________ RESPONDENT’S BRIEF ________________________________________________________________

DAVID E. ROLAND, MBE #60548 14779 Audrain Road 815 Mexico, Missouri 65265 Phone: 314-604-6621 Fax: 573-562-6122 Email: libertyandjustice@gmail.com Attorney for Contestant-Respondent

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ED104797

TABLE OF AUTHORITIES……………………………………………….

iv

INTRODUCTION AND SUMMARY……………………………………..

1

STATEMENT OF FACTS………………………………………………….

2

STANDARD OF REVIEW…………………………………………………

13

ARGUMENT………………………………………………………………..

15

I.

Longstanding Precedent and the Evidence Presented to the Trial Court Support the Trial Court’s Firm Conviction That the Validity of the Contested Election is Doubtful and That a New Election is Appropriate. (Responding to Appellant’s First Point Relied Upon)…………………………………………….

15

A. Voters are Not Disenfranchised When a Court Orders a New Election………………………………………………………………

15

B. Sections 115.275 to 115.304 Establish Detailed, Unambiguous Requirements Regarding the Use, Processing, and Counting of Absentee Ballots……………………………………………………

16

C. Failure to Comply with Statutes Governing the Use of Absentee Ballots is an “Irregularity” Within the Meaning of § 115.549, RSMo…………………………………………………..

D. Casting an Absentee Ballot is a Special Privilege, Not a Constitutional Right, and Strict Compliance With the Respondent’s Brief - i

23

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TABLE OF CONTENTS

24

E. Missouri Law Distinguishes Between Election Contests Involving Disputes Over Absentee Ballots and Election Contests Involving Disputes Over Other Election-Related Issues; The Cases Hubbard Relies Upon Do Not Involve Violation of Absentee Ballot Requirements………………………..

28

F. Irregularities in the Contested Election Call Into Question the Validity of at Least 238 Absentee Ballots the Board Counted in the Contested Election, Far More Than the Margin Separating the Candidates’ Vote Totals……………………

II.

31

No Other Statute, Constitutional Provision, or Regulation Invalidates or Supersedes the Statutes Governing the Use of Absentee Ballots. (Responding to Hubbard’s First and Second Points Relied Upon)………………………………………….

33

A. Neither the Trial Court’s Judgment Nor §§ 115.275 to 115.304, RSMo., Conflict With the Voting Rights Act of 1965…………………………………………………………………

33

B. Sections 115.275 to 115.304 Do Not Conflict With Any Constitutional Provision……………………………………………..

35

C. Sections 115.275 to 115.304 Do Not Conflict With § 115.225, RSMo………………………………………………………………….

Respondent’s Brief - ii

36

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Relevant Statutes is Mandatory……………………………………

38

RESPONDENT’S RULE 84.06 STATEMENT AND CERTIFICATE OF SERVICE…………………………………………………………………

Respondent’s Brief - iii

40

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CONCLUSION………………………………………………………………

CASES

PAGE(S)

Armantrout v. Bohon, 162 S.W.2 867 (Mo. 1942)……………………………………………

30

Barks v. Turnbeau, 573 S.W.2d 677 (Mo. App. 1978)…………………………………….

23, 26-31

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

30

Clark v. Trenton, 591 S.W.2d 257 (Mo. App. W.D. 1979)………………………………

23

Elliott v. Hogan, 315 S.W.2d 840 (Mo. App. 1958)……………………………………. 23-26, 29-30 Eversole v. Wood, 754 S.W.2d 27 (Mo. App. E.D. 1988)………………………………..

23

Gantt v. Brown, 142 S.W. 422, 425 (Mo. 1911)………………………………………..

31

Gasconade R-III Sch. Dist. v. Williams, 641 S.W.2d 444 (Mo. App. 1982)……………………………………..

23, 27, 30

Gerrard v. Board of Election Comm’rs, 913 S.W.2d 88, 89 (Mo. App. E.D. 1995)…………………………….

Houston v. Crider, Respondent’s Brief - iv

23

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TABLE OF AUTHORITIES

14

Kasten v. Guth, 395 S.W.2d 433 (Mo. 1965)………………………………………….

28

Marre v. Reed, 775 S.W.2d 951 (Mo. banc 1989)…………………………………….

23

Mickels v. Henderson, 642 S.W.2d 661 (Mo. App. E.D. 1982)………………………………

13

Murphy v. Carron, 536 S.W.2d 30 (Mo. banc 1976)………………………………………

13-14, 33

Royster v. Rizzo, 326 S.W.3d 104 (Mo. App. W.D. 2010)………………………………

13, 29-30

Sch. Dist. of Kansas City v. State, 317 S.W.3d 599 (Mo. banc 2010)…………………………………….

13

State ex rel. Bushmeyer v. Cahill, 575 S.W.2d 229 (Mo. App. 1978)…………………………………….

35

Straughan v. Meyers, 187 S.W. 1159 (Mo. banc 1916)………………………………… 23-24, 28, 30-31 Strom v. Automobile Club Inter-Insurance Exchange, 952 S.W.2d 794 (Mo. App. S.D. 1997)……………………………....

22

Whitener v. Turnbeau, 602 S.W.2d 890 (Mo. App. E.D. 1980)………………………………

Respondent’s Brief - v

30

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317 S.W.3d 178 (Mo. App. S.D. 2010)……………………………….

Section 115.225, RSMo. ………………………………………………………

33, 36-38

Section 115.227, RSMo. ………………………………………………………

38

Section 115.235, RSMo. ………………………………………………………

37-38

Section 115.277, RSMo. ………………………………………………………

16, 18

Section 115.279, RSMo. ………………………………………………………

17

Section 115.283, RSMo. …………………………………………………… 10-11, 17-18 Section 115.284, RSMo. ………………………………………………………

Section 115.287, RSMo. ………………………………………………………

Section 115.289, RSMo. ………………………………………………………

Section 115.291, RSMo. ………………………………………………………

Section 115.294, RSMo. ………………………………………………………

Section 115.295, RSMo. ………………………………………………………

Section 115.299, RSMo. ………………………………………………………

Section 115.300, RSMo. ………………………………………………………

Section 115.303, RSMo. ………………………………………………………

Section 115.429, RSMo. ………………………………………………………

Section 115.549, RSMo..……………………………………………………...

Section 115.600, RSMo……………………………………………………….

Section 115.902, RSMo.……………………………………………………...

Voting Rights Act of 1965, 52 U.S.C. § 10101……..………………………..

Respondent’s Brief - vi

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STATUTES

Article VIII, Section 7 of the Missouri Constitution………………………....

OTHER AUTHORITIES Black’s Law Dictionary (6th ed. 1990)………………………………………

Webster’s Third New Int’l Dictionary (Merriam-Webster 2002)……………

Respondent’s Brief - vii

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CONSTITUTIONAL PROVISIONS

The trial court below ordered a new election in which all registered voters of the 78th State House District (“the District) will be permitted to cast their ballots and make known their preferred candidate to represent the District in the Missouri House of Representatives. This new election is necessary because, after reviewing the evidence presented at trial, the trial court was “firmly convinced” that the unquestionably unlawful manner in which the St. Louis Board of Election Commissioners accepted and counted absentee ballots in the contested primary election casts doubt on the validity of the initial election. The new election ordered by the trial court will allow all of the District’s registered voters to participate in a fair, lawfully-conducted election—a right that they were not afforded on August 2, 2016.

Respondent’s Brief - 1

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INTRODUCTION AND SUMMARY

Bruce Franks, Jr. (“Franks”), is a candidate for the Democratic nomination to represent the 78th State House District (“the District”) in the Missouri General Assembly.

(L.F. 566, 576). The Contestee, Penny Hubbard (“Hubbard”), was Franks’ sole opponent in the primary election held on August 2, 2016, to select the Democratic nominee to represent the District in the Missouri General Assembly (“the Contested Election”).1 (Id.). The St. Louis City Board of Election Commissioners (“the Board”) conducted the Contested Election on August 2, 2016, in the City of St. Louis, Missouri. (Id.) Pre-Election Concerns Expressed and Ignored Prior to the Contested Election, Franks expressed concern to the Board that since at least 2008, when members of Hubbard’s family are candidates in elections, absentee ballots tend to make up an extraordinary percentage of total votes cast in those races, and those using absentee ballots consistently and overwhelmingly support the member of the Hubbard family. (Ex. 1, Tr. 67). Similar concerns had previously been raised to the Board by Ruth Ehresman, one of Hubbard’s opponents in the August 2012 primary election for the Democratic nomination to represent the District. (Tr. 67-68). At trial,

1

For the purposes of this brief, Franks will refer to the August 2, 2016, primary election

broadly as “the Primary;” when speaking specifically to the race for the Democratic Party’s nomination to serve the District in the Missouri House of Representatives, he will use the term “the Contested Election.”

Respondent’s Brief - 2

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STATEMENT OF FACTS

relevant statistic for comparing absentee voter turnout from one jurisdiction to another would be to divide the number of absentee ballots cast in an election by the total number of votes cast in that election. (Tr. 92). Burger testified that, having looked into Ehresman’s concerns in 2012, the Board did not find a significant difference between absentee voter turnout in Wards 5 and 3 as opposed to other Wards. (Tr. 68). But the statistics from that August 2012 primary election show that, dividing the number of absentee ballots cast in each of the City’s wards by the total number of ballots cast in each of the City’s wards, only 6 of the 28 wards saw absentee ballots make up at least 10% of all the votes cast in those wards.2 (Ex. 22). Ward 3 saw the third-highest absentee

2

Each set of official election statistics provided by the Board and included in the record

as exhibits contain a breakdown of the total number of ballots cast in each election precinct, including indications of the number of ballots cast at the polling stations, the number of absentee ballots cast, the number of provisional ballots cast, and the number of house ballots cast. These statistics allow for the calculation of total votes cast in a ward in a given election, votes cast at polling places in a ward in a given election, and absentee votes cast in a ward in a given election. These official statistics also indicate the percentage of all votes a candidate received in an election, the percentage of votes cast at polling places a candidate received in an election, and the percentage of absentee votes a candidate received in an election.

Respondent’s Brief - 3

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Joan Burger (“Burger”), who was then the Chair of the Board (Tr. 65), testified that the

at 13.7%,4 and in Ward 5 absentee ballots made up 26.5% of all ballots cast.5 (Id.). The official results for the August 2012 primary election for the Democratic nomination to represent the District show that although Hubbard received only 42.2% of the votes cast at the polls, she won 71% of the absentee votes cast in that election. (Id.). Franks also pointed out to the Board in advance of the election that although certain precincts in the Fifth Ward regularly see extraordinarily high percentages of absentee ballots cast in races when a Hubbard is on the ballot, in the March 2016 Presidential Preference Primary those same precincts saw absentee ballots comprise a miniscule percentage of the total votes cast. (Ex. 1, 26, 30). The Board chose not to investigate Franks’ concerns prior to the Contested Election. (Tr. 71, 94).

3

The 9 precincts in Ward 3 show 167 absentee ballots cast in the August 2012 primary

election and a total of 1,486 ballots cast. Dividing 167 by 1,486 shows that absentee ballots made up 11.2 percent of all ballots cast in Ward 3 in that election.

4

The 6 precincts in Ward 18 show 200 absentee ballots cast in the August 2012 primary

election and a total of 1,458 ballots cast. Dividing 200 by 1,458 shows that absentee ballots made up 13.7 percent of all ballots cast in Ward 18 in that election.

5

The 8 precincts in Ward 5 show 359 absentee ballots cast in the August 2012 primary

election and a total of 1,357 ballots cast. Dividing 359 by 1,357 shows that absentee ballots made up 26.5 percent of all ballots cast in Ward 5 in that election.

Respondent’s Brief - 4

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ballot percentage at 11.2%,3 Ward 18 saw the second-highest absentee ballot percentage

absentee ballot envelopes, Franks made an effort to contact the St. Louis Democratic Party Central Committee Chairman to secure credentials to be a challenger at the Board’s offices for the review of absentee ballot envelopes, but Franks’ phone call was not returned. (L.F. 569, 580). On July 22, 2016, Franks’ attorney made a Sunshine Law request to the Board which included, in part, a request to review absentee ballot applications and absentee ballot envelopes. (Tr. 94; L.F. 581). The Board initially refused to produce these records. (Tr. 94-95; L.F. 581). Those documents were not made available to Franks or his attorney until August 25, after Judge Julian Bush found that the Board had violated the Sunshine Law by withholding those records and ordered the Board to produce them. (Tr. 95; L.F. 581).

The August 2, 2016, Election Results The Board’s official results for the Contested Election state that the Board counted 4,316 votes cast by voters from the District in the Contested Election; 530 of the counted votes were cast by absentee ballot. (L.F. 566, 576). Franks won 1,999 (52.79%) of the votes cast at the polls on August 2, while Hubbard won 1,787 (47.21%) of those votes.

(L.F. 581; Ex. 31). Hubbard won 416 (78.49%) of the votes cast via absentee ballot while Franks won 114 (21.51%) of the votes cast via absentee ballot. (L.F. 581-82; Ex. 8, 31). The Board’s official results for the Contested Election show Hubbard receiving a total of 2,203 votes and Franks received a total of 2,113 votes, giving Hubbard a victory by 90 votes. (L.F. 582; Ex. 7, 31). During the trial the parties agreed and stipulated that Respondent’s Brief - 5

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Prior to the deadline for requesting challengers to be present at the review of

because those votes were unlawfully cast. (L.F. 577).

Burger testified that she had reviewed the number of absentee ballots cast in the various State House District races in the Primary and that she thought the numbers were “similar.” (Tr. 76, 78). The Board’s official statistics show the following in regard to absentee ballots as a percentage of the total vote in the August 2, 2016, Democratic primaries for legislative districts in the City of St. Louis: District

Absentee Ballots Counted

Total Ballots Counted

Absentee Ballot %

Senate 5

1,779

21,625

8.2%

House 66

27

443

6.1%

House 76

449

4,567

9.8%

House 77

501

4,802

10.4%

House 78

530

4,316

12.3%

House 79

378

4,629

8.2%

House 80

250

5,694

4.4%

House 81

181

3,813

4.7%

House 82

260

4,442

5.9%

House 83

62

1,219

5.1%

House 84

420

4,605

9.1%

House 91

9

116

7.8%

Respondent’s Brief - 6

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the Board should not have counted eight of the votes included in that official result

37

539

6.9%

(Ex. 7, 8).

The Election Contest Filed, Then Delayed Franks filed his Petition for Election Contest on August 17, 2016, the day after the Board announced the official results of the Contested Election. (L.F. 569, 580). Judge Julian Bush set the case for a preliminary hearing five days later on August 22. (Id.).

Hubbard appeared specially 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. 569-70, 580). 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. (L.F. 570, 580). The Secretary of State certified the results of the Contested Election on August 25, 2016. (L.F. 570, 581). Judge Bush granted Franks’ Motion to File an Amended Petition and that Amended Verified Petition was filed on August 26, 2016. (L.F. 6). Judge Bush set the trial in this matter to begin on August 31, 2016, then recused himself from the case; the case was then assigned to Judge Rex Burlison. (L.F. 5-6). Hubbard filed a second Motion to Dismiss on August 30, 2016, which Judge Burlison denied prior to the beginning of the trial on August 31, 2016. (Tr. 26; L.F. 5) Hubbard never filed an Answer to Franks’ Petition, nor did she file any Affirmative Defenses.

Respondent’s Brief - 7

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House 93

Franks contends that the validity of the Contested Election is in doubt because the Board accepted and counted 238 absentee ballots in a manner that did not comply with the requirements of §§ 115.275 to 115.304, RSMo., which govern the use of absentee ballots. (L.F. 570). These statutes make regular reference to the use of absentee ballot envelopes, examples of which are included among the exhibits. (Ex. 3-4). Absentee ballot envelopes are labeled “OFFICIAL ABSENTEE VOTER AFFIDAVIT.” (Tr. 45; Ex. 3-4). (emphasis in original). At the top of each absentee ballot envelope mailed to a voter is the following statement: “NOTE: Voter must complete this affidavit before an officer authorized by law to administer oaths UNLESS THE VOTER IS VOTING ABSENTEE DUE TO INCAPACITY OR CONFINEMENT DUE TO ILLNESS OR DISABILITY. Seal and mail this envelope which must be received by the Election Board by 7:00 p.m. on the day of the election.” (Tr. 245, 249; Ex. 3-4). (emphasis in original). At the bottom of each absentee ballot envelope mailed to a voter is the following statement: “MAIL (OR DELIVER IN PERSON). THIS ENVELOPE IMMEDIATELY. LOCAL POLLING PLACE CANNOT ACCEPT ABSENTEE BALLOTS.” (Ex. 3-4). (emphasis in original). Under the “Official Absentee Voter Affidavit” heading, each absentee ballot envelope mailed to a voter bears a statement indicating that the voter declares under the penalties of perjury that the voter expects to be prevented from going to the polls on election day due to one of the six statutorily authorized purposes for using an absentee ballot; the envelope indicates that the voter is Respondent’s Brief - 8

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Franks Contends the Board Counted 238 Absentee Ballots Unlawfully

justification for voting absentee, each ballot envelope includes a statement indicating that the voter declares under penalties of perjury that (1) the voter is qualified to vote, has not voted and will not vote at the instant election other than by the enclosed ballot, (2) the voter marked the ballot in secret or that, due to certain permissible reasons, the voter received assistance from a person of their choosing, and (3) all of the information on the statement is, to the best of the voter’s knowledge and belief, true. (Tr. 131, 245; Ex. 3-4).

Below these statements, each ballot envelope includes lines marked for the signature of the voter, the address of the voter, the voter’s mailing address, and also a line for the signature of a person assisting the voter, if applicable. (Tr. 131; Ex. 3-4). Some absentee ballot envelopes provide a space where a notary can notarize the document; other absentee ballot envelopes replace the notarization information with a block that reads “NO NOTARY REQUIRED.” (Ex. 3-4). Each absentee ballot envelope the Board mails to a voter bears a label printed by the Board that includes the voter’s name and an address associated with the voter. (Tr. 115; Ex. 12-17). Unlike absentee ballot envelopes, absentee ballot applications are not labeled as affidavits, they do not indicate that the person signing is doing so under penalty of perjury, and they are not notarized. (Tr. 132, 245-46; Ex. 14-17).

The Board accepted and counted 142 absentee votes in the Contested Election that were cast in-person at the central location of the Election Board; none of these walk-in absentee votes were placed in an absentee ballot envelope. (L.F. 566-67). A voter who Respondent’s Brief - 9

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to mark one of the six reasons. (Tr. 131, 245; Ex. 3-4). Under the place to mark the

ballot application, but is not required to make any statement under oath or under penalty of perjury, and is not required to have their written statements notarized or otherwise certified. (Tr. 131-32). “Absentee” ballots cast in-person in advance of election day are not held aside with absentee ballots in absentee ballot envelopes to be opened on election night. (Tr. 127). After a voter casts their ballot in person at the Board’s offices, there is no way to connect the vote itself to the person who cast it. (Tr. 128, 143). This means that after the point at which a voter casts their ballot in person at the Board’s offices prior to election day, it becomes impossible for a candidate to challenge the validity of that ballot. (Tr. 129). Burger acknowledged that the applicable statutes require absentee ballot envelopes for every absentee ballot. (Tr. 135).

The Board accepted and counted absentee ballots from 57 voters who did not write their address on their absentee ballot envelopes before returning them to the Board. (L.F. 567, 571-572, 577). The Board accepted and counted absentee ballots from 11 voters who received assistance filling out their absentee ballots and their assistant signed the absentee ballot envelope but did not otherwise include a statement similar to the example provided in § 115.283.5, RSMo. (L.F. 567-68, 572-73, 578). The Board accepted and counted absentee ballots from 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 Respondent’s Brief - 10

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casts an in-person ballot at the Board’s offices prior to election day fills out an absentee

these voters absentee envelopes that stated “No Notary Required.” (L.F. 568, 578-79).

When these 21 voters sent their absentee ballot envelopes back to the Board, however, the voter indicated a different reason for voting absentee that did require a notarization of their affidavit, but their ballot envelopes had not been notarized. (L.F. 568-69, 579). The Board accepted and counted absentee ballots from 6 voters whose stated justification for voting absentee would require notarization of their ballot envelopes, but the absentee ballot envelopes the Board sent to them stated that no notary was required; all 6 voters submitted the absentee ballot envelope provided to them by the Board without having them notarized. (L.F. 569, 579). The Board accepted and counted an absentee ballot from one voter whose absentee ballot envelope did not include his address and also did not include a statement similar to the example provided in § 115.283.5 from the person who assisted him in filling out his ballot. (L.F. 568, 578). Franks contends that each of the above 238 ballots violated §§ 115.283, 115.291, and 115.295 and, thus, were unlawfully counted toward the official result in the Contested Election. (L.F. 581).

Miscellaneous Evidence Anticipating that Hubbard might argue that the label the Board places on absentee ballot envelopes satisfies the statutory requirement for a voter to put their name and address on their absentee ballot envelope, Franks introduced Exhibit 12, comprising 18 absentee ballot envelopes that the Board rejected despite their bearing Board labels with the voter’s name and an address associated with that voter. Franks also introduced Respondent’s Brief - 11

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incapacitated or confined due to illness or disability;” this resulted in the Board sending

notarized. One of these, belonging to Jasmine McElroy, the Board rejected for lack of notarization even though the voter marked as her reason for voting absentee “incapacity or confinement due to illness or disability.” (Ex. 13) Franks also elicited testimony from Board employees to the effect that they sometimes disregard voters’ written statements on absentee ballot envelopes regarding the voters’ justification for casting an absentee ballot and the voters’ stated address. (Tr. 260, 263). Bettie Williams testified that even if a voter marks on their absentee ballot envelope that the voter’s justification for voting absentee is one that would require the absentee ballot envelope to be notarized, the Board would not require the envelope to be notarized as long as the voter’s absentee ballot application had initially indicated that the justification for voting absentee was “incapacity or confinement due to illness or physical disability.” (Tr. 260). Williams also testified that the Board and its staff have the discretion to overlook violations of Missouri’s absentee ballot statutes if the Board chooses to do so, especially if the violation is the result of a mistake made by the Board.

(Tr. 248-250, 266-67, 270-273).

The Trial Court’s Determination On September 2, 2016, Judge Rex Burlison issued a Memorandum, Order, and Final Judgment stating that the evidence presented in this matter left him “firmly convinced” that the Board’s various violations of the statutes governing the use of absentee ballots affected the outcome of the Contested Election. (L.F. 593). Judge Respondent’s Brief - 12

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Exhibit 13, comprising 14 absentee ballot envelopes that the Board rejected for not being

apparent victor and is of sufficient magnitude to cast doubt on the validity of the initial election.” (Id.). Hubbard timely filed her notice of appeal on September 6, 2016. (L.F. 256).

STANDARD OF REVIEW This appeal concerns an election contest in which the central question addresses violations of Missouri statutes establishing the special privilege of casting an absentee ballot, rather than the constitutional right of casting a ballot at the polls on election day.

In an appeal of an election contest in which a trial court has ordered a new election because it has been “firmly convinced” that the evidence shows irregularities sufficient to cast doubt on the validity of a challenged election, the appellate court owes a high degree of deference to the trial court’s ultimate finding in this regard. Royster v. Rizzo, 326 S.W.3d 104, 115 (Mo. App. W.D. 2010). The appellate court must affirm the trial court’s judgment unless there is no substantial evidence to support it, unless it is against the weight of the evidence, or unless it erroneously applies the law. See Mickels v.

Henderson, 642 S.W.2d 661, 663-64 (Mo. App. E.D. 1982) (citing Murphy v. Carron, 536 S.W.2d 30 (Mo. banc 1976)). “When determining the sufficiency of the evidence, an appellate court will accept as true the evidence and inferences from the evidence that are favorable to the trial court’s decree and disregard all contrary evidence.” Rizzo at 113 (citing Sch. Dist. of Kansas City v. State, 317 S.W.3d 599, 604 (Mo. banc 2010)).

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Burlison held that “the number of votes called into question exceeds the margin of the

evidence that, if true, has probative force upon the issues, and from which the trial court could reasonably decide the case. Houston v. Crider, 317 S.W.3d 178, 186 (Mo. App. S.D. 2010). “Weight of the evidence” focuses on the probative value of the evidence presented; “an against-the-weight-of-the-evidence challenge presupposes… the existence of substantial evidence supporting a proposition necessary to sustain a judgment, but, nevertheless, challenges the probative value of that evidence to induce belief in that proposition when viewed in the context of the entirety of the evidence before the trier of fact.” Id. To pursue a “not-supported-by-substantial-evidence” challenge, an appellant must: (1) identify a challenged factual proposition, the existence of which is necessary to sustain the judgment; (2) identify all of the favorable evidence in the record supporting the existence of that proposition; and (3) demonstrate why that favorable evidence, when considered along with reasonable inferences drawn from that evidence, does not have probative force on the proposition such that the trier of fact could not reasonably decide the existence of the proposition. Id. at 187. To pursue an “against-the-weight-of-theevidence” challenge, an appellant must: (1) identify a challenged factual proposition, the existence of which is necessary to sustain the judgment; (2) identify all of the favorable evidence in the record supporting the existence of that proposition; (3) identify the evidence in the record contrary to the belief of that proposition, resolving all conflicts in testimony in accordance with the trial court’s credibility determinations, whether explicit or implicit; and (4) demonstrate why the favorable evidence, along with the reasonable Respondent’s Brief - 14

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Under the Murphy v. Carron standard, “substantial evidence” means competent

the context of the totality of the evidence, that it fails to induce belief in that proposition.

Id. ARGUMENT I.

Longstanding Precedent and the Evidence Presented to the Trial Court

Support the Trial Court’s Firm Conviction That the Validity of the Contested Election is Doubtful and That a New Election is Appropriate. (Responding to Appellant’s First Point Relied Upon) Hubbard’s brief touches on the idea of a standard of review, but never actually states whether she is challenging facts found by the trial court, conclusions of law the trial court reached, or some combination of both. In any event, Hubbard’s contentions are supported neither by the evidence in this case nor the law that this Court is required to apply to that evidence.

A. Voters are Not Disenfranchised When a Court Orders a New Election.

Franks acknowledges that courts have previously described the effect of invalidating an election and ordering a new one as “disenfranchising” those who cast ballots in the initial election, but he takes issue with this description. Black’s Law Dictionary defines “disfranchisement” as “the taking away of the elective franchise (that is, the right of voting in public elections) from any citizen or class of citizens.” Black’s Law Dictionary 468 (6th ed. 1990). That is not what happens when a court nullifies an election the validity of which is doubtful and orders a new election to take place. Rather Respondent’s Brief - 15

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inferences drawn from that evidence, is so lacking in probative value, when considered in

additional opportunity for citizens to vote, at the same time ensuring that the new election will be free from the irregularities that marred the first one. Consequently it is inaccurate and somewhat misleading to use the word “disenfranchise” to describe the effect when a court nullifies an invalid election and orders a new, lawfully-conducted election in which all of a district’s registered voters will be permitted fully to participate.

B. Sections 115.275 to 115.304 Establish Detailed, Unambiguous Requirements Regarding the Use, Processing, and Counting of Absentee Ballots.

The statutes directly governing the absentee voting process are §§ 115.275 to 115.304, RSMo. Section 115.277.1, RSMo., states that “any registered voter in the state may vote by absentee ballot for all candidates and issues for which such voter would be eligible to vote at the polling place if such voter expects to be prevented from going to the polls to vote on election day due to: (1) Absence on election day from the jurisdiction of the election authority in which such voter is registered to vote; (2) Incapacity or confinement due to illness or physical disability, including a person who is primarily responsible for the physical care of a person who is incapacitated or confined due to illness or injury; (3) Religious belief or practice;

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than “disenfranchising” voters, § 115.549, RSMo., provides a remedy that creates an

by an election authority at a location other than such voter’s polling place; (5) Incarceration, provided all qualifications for voting are retained.

Section 115.279.1, RSMo, allows a voter to apply for an absentee ballot “in person, or by mail” or a voter’s guardian or close relative may apply on behalf of the voter for an absentee ballot in person. Section 115.279.2, RSMo., states in relevant part that “[e]ach application shall be in writing and shall state the applicant’s name, address at which he or she is or would be registered, his or her reason for voting an absentee ballot and the address to which the ballot is to be mailed, if mailing is requested.”

Section 115.283, RSMo., requires the voter to make four specific statements on a ballot envelope: (1) The voter’s name, (2) The voter’s voting address, (3) The voter’s mailing address, and (4) The voter’s reason for voting an absentee ballot.

Section 115.283, RSMo., also requires the voter to swear to a statement “under penalties of perjury” that the voter is qualified to vote in the election, that the voter has personally marked the voter’s ballot in secret or supervised the marking of the voter’s ballot if the voter is unable to mark it, that the ballot has been placed in the envelope and sealed by the voter or under the voter’s supervision if the voter is unable to seal it, and that all of the information contained in the statement is true. This section then goes on to prescribe Respondent’s Brief - 17

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(4) Employment as an election authority, as a member of an election authority, or

name, voting address, mailing address (if different), the reason the voter is qualified to cast an absentee ballot, and a space for these statements to be confirmed by a notary or another officer authorized to administer oaths. Section 115.283.7, RSMo., states that if a voter indicates that their reason for voting absentee is pursuant to § 115.277.1(2)— “incapacity or confinement due to illness or physical disability”—the voter is not required to have a notary or other officer attest to the voter’s signature.

Section 115.287.1, RSMo., requires an election authority, upon receipt of a signed application for an absentee ballot, to deliver to the voter “an absentee ballot, ballot envelope and such instructions as are necessary for the applicant to vote.” The statute allows the election authority to deliver these items to the voter personally in the office of the election authority or by bipartisan teams appointed by the election authority, or by first class, registered, or certified mail at the direction of the election authority.

Section 115.291, RSMo., provides clear instructions for how an absentee ballot is to be prepared and delivered to the election authority: 1. Upon receiving an absentee ballot, the voter shall mark the ballot in secret, place the ballot in the ballot envelope, seal the envelope and fill out the statement on the ballot envelope. The affidavit of each person voting an absentee ballot shall be subscribed to and sworn before the election official receiving the ballot, a notary public or other public officer authorized by

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a form to be used on absentee ballot envelopes, which leaves blank spaces for the voter’s

incapacity or confinement due to the provisions of section 115.284...

2. Except as provided in subsection 4 of this section, each absentee ballot shall be returned to the election authority in the ballot envelope and shall only be returned by the voter in person, or in person by [a close relative of the voter], by mail or registered carrier or by a team of deputy election authorities[.] (emphasis added) The relevant statutes do not authorize election authorities to accept or count an absentee ballot that is not in a ballot envelope.

Section 115.295.2, RSMo., states, “If the statements on any ballot envelope have not been completed, the absentee ballot in the envelope shall be rejected.” (emphasis added) Section 115.294, RSMo., states, “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.”

Section 115.295.3, RSMo., states, “All ballot envelopes received by the election authority shall be kept together in a safe place and shall not be opened except as provided in this subchapter.”

Section 115.300, RSMo., describes how absentee ballot envelopes are to be prepared and handled prior to their counting at the appropriate time. Section 115.299, RSMo., specifically describes how absentee ballots are to be counted; subsection 4 of that Respondent’s Brief - 19

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law to administer oaths, unless the voter is voting absentee due to

observed by another member of the team from a different political party, shall open each envelope and call out the voter’s name in a clear voice…” (emphasis added) Section 115.303, RSMo., allows any election authority personnel, any registered voter, or any duly authorized challenger to challenge absentee ballots or votes on absentee ballots, in accordance with § 115.429, RSMo. Section 115.291, RSMo., gives precise instructions for how a voter is to handle their absentee ballot. The statute specifies that the prescribed procedure applies to a person “receiving an absentee ballot in person” as well as a person receiving an absentee ballot by mail. § 115.291.1, RSMo. The statute requires the voter to (1). mark the ballot in secret, (2). place the ballot in the ballot envelope, (3). seal the envelope, and (4). fill out the statement on the ballot envelope.6 Id. (emphasis added). The very next sentence indicates that “each person voting an absentee ballot” shall subscribe and swear an

6

The statement to which this requirement is referring is described in § 115.283, RSMo.,

which requires the voter to “state the voter’s name, the voter’s voting address, the voter’s mailing address and the voter’s reason for voting an absentee ballot.” This section also requires separate statements regarding the circumstances under which the voter cast their ballot and, if applicable, “a statement on the envelope identifying the person providing assistance” to the voter; subsections 2 and 5 of that section prescribe specific language for these required statements.

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section states in relevant part that “one member of each [vote counting] team, closely

notary public, or other officer authorized by law to administer oaths,” with the sole exceptions being if “the voter is voting absentee due to incapacity or confinement due to the provisions of section 115.284, illness or physical disability, or the voter is a covered voter as defined in section 115.902.” Section 115.291.2, RSMo., then states that “each absentee ballot shall be returned to the election authority in the ballot envelope[.]”

Section 115.295.2, RSMo., clearly and unambiguously states that “[i]f the statements on any ballot envelope have not been completed, the absentee ballot in the envelope shall be rejected.” Through this language the legislature has unquestionably declared to be fatal a specified irregularity in regard to the acceptance and counting of absentee ballots. Consequently, in the course of the Contested Election the Board of Election Commissioners was required to reject any absentee ballot that was not accompanied by the statements that Missouri law requires a voter to make on a ballot envelope.

These statutes make clear that in all but a few clearly defined circumstances, voters casting absentee ballots are required to accompany their ballots with subscribed and sworn affidavits. Black’s Law Dictionary defines “affidavit” as “[a] written or printed declaration or statement of facts, made voluntarily, and confirmed by the oath or affirmation of the party making it, taken before a person having authority to administer such oath or affirmation.” Black’s Law Dictionary 58 (6th ed. 1990). Webster’s Third New International Dictionary (the preferred dictionary of the Missouri Supreme Court) Respondent’s Brief - 21

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affidavit regarding these statements “before the election official receiving the ballot, a

affirmation before an authorized magistrate or officer.” Webster’s Third New Int’l Dictionary 648 (Merriam-Webster 2002). This Court has also previously recognized that “[a]n affidavit is a declaration on oath, in writing, sworn to by a person before someone authorized to administer such oath.” See, e.g., Strom v. Automobile Club Inter-Insurance Exchange, 952 S.W.2d 794, 798 (Mo. App. S.D. 1997). Each absentee ballot envelope that the Board provides to voters is specifically designated as an “OFFFICIAL ABSENTEE VOTER AFFIDAVIT” and include spaces in which the voters may make the required statements under oath. See Contestant Exhibits 3 and 4. The absentee ballot applications used by the Board, however, are not affidavits. Persons filling out an absentee ballot application do not represent that the statements made on the application are made under penalty of perjury, nor does the Board require persons filling out absentee ballot applications in person at the Board’s office to do so under oath before the election official receiving the ballot, a notary public, or other officer authorized by law to administer oaths.7 Tr. at 200. Consequently, filling out a ballot application in the Board’s offices and/or making certain oral representations to a Board staff member is not adequate to fulfill the clear requirements established in § 115.291.1, RSMo.

7

Pamela Lake, the Democratic Absentee Supervisor Coordinator for the Board, testified

that the Board does require voters to make a sworn statement under oath when registering to vote, because “that is the law.” Tr. at 201.

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defines “affidavit” as “a sworn statement in writing made especially under oath or on

“Irregularity” Within the Meaning of § 115.549, RSMo. Hubbard’s First Point Relied Upon insinuates that the several violations of Missouri’s absentee ballot statutes identified in this case might not be considered “irregularities” within the meaning of § 115.549, RSMo. This suggestion is wholly unsupported by any statute or precedent.

“Irregularity… is not defined in the statute and the courts have not given a definitive interpretation of this term but the rules of statutory construction and the existing precedent clearly indicate that violation of an election statute is an irregularity.”

Gerrard v. Board of Election Comm’rs, 913 S.W.2d 88, 89 (Mo. App. E.D. 1995). The plain meaning of the word “irregularity” clearly includes disregarding election statutes.

See id. at 90. Missouri courts have held in several cases not involving disputes over the use of absentee ballots that violations of election statutes constitute irregularities sufficient to justify the remedies authorized in election contests. See, e.g., Marre v. Reed, 775 S.W.2d 951 (Mo. banc 1989); Eversole v. Wood, 754 S.W.2d 27 (Mo. App. E.D. 1988); Clark v. Trenton, 591 S.W.2d 257 (Mo. App. W.D. 1979). Missouri Courts have also held in several cases that did involve disputes over the use of absentee ballots that violations of absentee ballot statutes constitute irregularities sufficient to justify the remedies authorized in election contests. See, e.g., Straughan v. Meyers, 187 S.W. 1159 (Mo. banc 1916); Elliott v. Hogan, 315 S.W.2d 840 (Mo. App. 1958); Barks v. Turnbeau, 573 S.W.2d 677 (Mo. App. 1978); Gasconade R-III Sch. Dist. v. Williams, 641 S.W.2d Respondent’s Brief - 23

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C. Failure to Comply with Statutes Governing the Use of Absentee Ballots is an

binding precedent, the violation of laws pertaining to the use of absentee ballots constitutes an irregularity sufficient to justify the remedies provided in relation to election contests.

D. Casting an Absentee Ballot is a Special Privilege, Not a Constitutional Right, and Strict Compliance With the Relevant Statutes is Mandatory.

One hundred years ago, the Missouri Supreme Court established that casting an absentee ballot, rather than voting on election day at a specified polling location in one’s home jurisdiction, is “a special privilege… available only under certain conditions” and that “until these conditions are complied with, the privilege cannot be exercised.”

Straughan v. Meyers, 187 S.W. 1159, 1164 (Mo. banc 1916) (holding that absentee ballots should not have been counted where not accompanied by affidavits). Missouri courts have followed this binding guidance ever since. To conclude that compliance with this state’s absentee ballot requirements is anything other than mandatory, this Court would have to overturn a century’s worth of precedent—including a ruling by the Missouri Supreme Court—on this precise issue.

In Elliot v. Hogan, 315 S.W.2d 840 (Mo. App. 1958), this Court directly confronted and dispensed with several of the arguments Hubbard is pursuing, particularly the argument that “technical” violations of absentee ballot laws might not require the rejection of the unlawfully counted ballots. The outcome of the election at issue in Elliott hinged on 16 absentee ballots cast by persons who, due to illness or disability, were not Respondent’s Brief - 24

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444 (Mo. App. 1982). It is beyond reasonable dispute that, under longstanding and

complied with all of the relevant absentee ballot statutes. Id. at 845. The citizens who had cast those absentee ballots were registered voters who had clearly expressed which candidates they wished to support, id. at 844, but the contestant alleged that their requests for absentee ballots had been untimely, that their absentee ballots were not accompanied by medical certificates that the statutes required, and that the absentee ballots had not been delivered to the City Clerk in a proper fashion. Id. at 845.

The contestee in Elliott attempted to argue that the alleged violations of the absentee ballot statutes were inconsequential and that the City Clerk had previously stated that medical certificates had never been required for those wishing to cast absentee ballots due to illness or disability. Id. at 846. The Court in that case acknowledged the general rule in cases not dealing with absentee ballots that “where an irregularity has been such as not to have interfered with a full and fair expression of the voters’ choice, particularly where it is the mistake of an election official, the irregularity should not result in the disenfranchisement of the voters,” id., but it also immediately held that the state’s absentee ballot requirements were all mandatory. Id. at 847-48. The contestee claimed that the disputed absentee ballots should not be rejected because the relevant statutes only specified the rejection of absentee ballots in regard to certain violations without similarly specifying rejection of absentee ballots for other violations, but the Court directly contradicted this argument, holding instead that “the result of non-

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able to vote at the polls on election day and whose ballots, the contestee admitted, had not

848.

The contestee in Elliott also asserted that, despite the legal deficiencies the contestant had shown in the election authority’s acceptance and counting of the contested ballots, “the 16 absentee ballots in question should be counted because no fraud in the voting of such ballots was alleged or proved.” Id. at 849. The Court thoroughly discredited that argument, noting that the absence of “actual fraud” (defined as “an intentionally dishonest violation of the absentee voting laws committed with the purpose of obtaining an advantage by one candidate, to the detriment of the other”) is immaterial because whenever absentee ballots are illegally or improperly cast or counted they are void and thus constitute “legal fraud.” Id. at 848-49. “[W]hether the fraud alleged in an election contest be actual or legal is immaterial and the consequence is the same.” Id. at 849. The Elliott Court affirmed the trial court’s decision to nullify the ballots that had been unlawfully counted.8 More recently, this Court reiterated in Barks v. Turnbeau, 573 S.W.2d 677, 681 (Mo. App. E.D. 1978), that “the opportunity to vote by absentee ballot is clearly a privilege and not a right. Compliance with the statutory requirements is mandatory.” In

8

Incidentally, the nullification of ballots without calling for a new election is much more

closely akin to “disenfranchisement” than the remedy that state statute and the trial court have afforded in the instant case.

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compliance [with absentee ballot laws] should be the same for all such violations.” Id. at

including (1) failure of the election authority to compile a list of absentee ballot applicants’ names and addresses, (2) failure of the election authority to mark when absentee ballot envelopes were received, (3) failure of the election authority to print ballot envelopes with affidavits that conformed to the requirements of § 115.283, (4) failure of the voter to personally fill out the affidavits on the absentee ballot envelopes, (5) failure of the election authority to reject absentee ballot envelopes that contained faulty statements on them, and (6) failure of the election authority to convene a verification board to certify the election’s results. Id. at 680-81. Although the contestee in Barks argued that most of the errors identified were “almost solely attributable to oversights of the election authority and had no effect on the actual tally,” the Court held that these absentee ballot requirements were mandatory and that a failure to comply with those requirements rendered an associated ballot unlawful. Id. at 682; see also Gasconade R-III Sch. Dist. v. Williams, 641 S.W.2d 444 (Mo. App. E.D. 1982).

In summary, every Missouri appellate decision that Franks has located dealing with the state’s absentee ballot statutes has concluded that the use of absentee ballots is a special privilege, not a constitutional right. Those cases have also repeatedly rejected contestees’ claims that so-called “minor” or “technical” violations of the absentee ballot laws should be overlooked, holding instead that compliance with these laws is mandatory if an absentee ballot is to be lawfully counted. And, most importantly, these cases have held that any violation of the absentee ballot laws constitutes “legal fraud” even if there is Respondent’s Brief - 27

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Barks the contestant pointed out a number of violations of the absentee ballot statutes,

ruling in Straughan, these cases dealing with application of the state’s absentee ballot laws are binding on the outcome of the instant case. It is black-letter law in Missouri that “[t]he uppermost question in applying statutory regulation to determine the legality of votes cast and counted is whether or not the statute itself makes a specified irregularity fatal. If so, courts enforce it to the letter.” Kasten v. Guth, 395 S.W.2d 433, 435 (Mo. 1965). “If the law itself declares a specified irregularity to be fatal, the courts will follow that command irrespective of their views of the importance of the requirement.” Id. The cases considering statutory requirements for those wishing to exercise the special privilege of casting an absentee ballot make clear that failure to comply with those statutory requirements is fatal, and an unlawfully submitted absentee ballot should not be counted.

E. Missouri Law Distinguishes Between Election Contests Involving Disputes Over Absentee Ballots and Election Contests Involving Disputes Over Other Election-Related Issues; The Cases Hubbard Relies Upon Do Not Involve Violation of Absentee Ballot Requirements.

Missouri courts dealing with election contests distinguish between cases involving absentee ballots and the violation of laws governing the use of absentee ballots and cases involving alleged violation of election laws where voters are casting ballots at regular polling places on election day; different legal standards apply for each of these categories.

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no evidence of “actual fraud.” Particularly in light of the Missouri Supreme Court’s

W.D. 2010), a case that does not involve a dispute over absentee ballots, suggesting that the Court’s rationale in Rizzo should apply to the instant case, where the sole issue is compliance with absentee ballot statutes. The opinion in Rizzo, however, explicitly distinguished that case from the Missouri cases addressing absentee ballot statutes. The contestant in Rizzo sought a new election based on allegations that several election laws might have been violated in regard to voting that took place at regular polling locations on election day. Id. at 107. The trial court denied the requested relief, concluding that the only alleged violations of election law supported by the evidence were that election officials failed to obtain an oath from a few non-English speaking voters before they received assistance with their ballots, and that a sign supporting a candidate was bought into a polling station for about fifteen minutes. Id. at 114. On appeal, the contestant argued that the court should apply the standards applied in two absentee ballot cases, Elliott and Barks, where the failure of certain ballots strictly to comply with absentee ballot laws required rejection of the noncompliant ballots. The court pointed out, however, that the contestee was relying on law applicable to absentee ballots, and that this was erroneous because absentee ballots were not at issue in Rizzo. Id. at 115.

Although Hubbard’s brief argued on page 15 that the Rizzo Court disregarded a requirement imposed by § 115.291.1, the Rizzo Court actually chastised the contestant in that case for trying to cite § 115.291, stating, “We fail to see the relevance of this statute because no absentee ballots are at issue in the instant election, and as outlined above, our Respondent’s Brief - 29

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Hubbard places great weight on Royster v. Rizzo, 326 S.W.3d 104 (Mo. App.

irregularity at issue.” Id. Hubbard’s reliance on Armantrout v. Bohon, 162 S.W.2 867 (Mo. 1942), is also misplaced. Neither absentee ballots nor the laws governing absentee ballots were at issue in Armantrout. Rather, the issue in that case was whether the contestant had pled facts sufficient to support her election contest. The Missouri Supreme Court decided in Armantrout that the contestant had not alleged “that any mandatory law, constitutional or statutory, was violated.” Missouri courts have made absolutely clear, however, that absentee ballot statutes are mandatory. Elliott at 848; Barks at 681; see also Straughan at 1164; Gasconade R-III Sch. Dist. at 445; Whitener v. Turnbeau, 602 S.W.2d 890, 894 (Mo. App. E.D. 1980).

Even more puzzling is Hubbard’s reliance on Bd. of Election Comm’rs of St. Louis County v. Knipp, 784 S.W.2d 797 (Mo. banc 1990), a very short opinion focused exclusively on the issue of whether § 115.600, RSMo., permits an election authority to ask a court to order a new election. In that case an election authority filed a petition seeking a new election due to the way 15 write-in ballots had been handled; the case did not in any way implicate absentee ballots or the statutes governing the use of absentee ballots. Although the trial court in Knipp found that the mishandling of those write-in ballots affected the outcome of the election and ordered a new election to be held, the Missouri Supreme Court reversed due to its determination that § 115.600 only authorizes election authorities to seek a recount, not a new election. Nothing about the Knipp case Respondent’s Brief - 30

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analysis is constrained only to those specific statutes called into question by the voting

governing the use of absentee ballots.

F. Irregularities in the Contested Election Call Into Question the Validity of at Least 238 Absentee Ballots the Board Counted in the Contested Election, Far More Than the Margin Separating the Candidates’ Vote Totals.

The Missouri Supreme Court has noted that even if a voter, acting in good faith and without any intent to defraud, casts a vote that is illegal, that vote “works a fraud upon the person against whom it is cast, and would be denominated a legal fraud.” Gantt v. Brown, 142 S.W. 422, 425 (Mo. 1911). The Missouri cases dealing with violations of absentee ballot statutes are replete with examples of registered voters that, although they acted in good faith, cast unlawful ballots that the courts determined should not have been included in the election results. In Straughan v. Meyers, 187 S.W. 1159 (Mo. banc 1916), the Missouri Supreme Court ruled that absentee ballots cast by registered voters should have been rejected because their envelopes had not been marked with affidavits or the initials of election judges. In Elliott v. Hogan, 315 S.W.2d 840 (Mo. App. 1958), the Court of Appeals ruled that absentee ballots cast by registered voters should have been rejected because the voters had not supplied required certification affirming that the voters qualified to cast absentee ballots. In Barks v. Turnbeau, 573 S.W.2d 677 (Mo. App. 1978), the Court of Appeals ruled that absentee ballots cast by registered voters should have been rejected because many of the voters had not provided required statements on the absentee ballot envelopes and because election officials accepted the Respondent’s Brief - 31

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resembles the instant case and it has nothing to say about absentee ballots or the laws

counting absentee ballots. In Gasconade R-III Sch. Dist. v. Williams, 641 S.W.2d 444 (Mo. App. 1982), the Court of Appeals ruled that absentee ballots cast by registered voters should have been rejected because the voters failed to include on their absentee ballot envelopes the statements required by § 115.283, RSMo. None of these cases indicated that the voters attempting to use absentee ballots committed these violations in bad faith. Nevertheless, because compliance with the statutes governing the use of absentee ballots is mandatory, the courts in each of these cases ruled that the absentee ballots at issue were unlawfully cast and should not have been counted.

In this case, Hubbard has stipulated that 238 of the absentee ballots counted in the Contested Election failed in one way or another to comply with the statutes governing the use of absentee ballots. Even setting aside the 142 walk-in absentee ballots that were not accompanied with the required statements on an absentee ballot envelope and were not otherwise handled in accordance with the absentee ballot statutes, Hubbard has conceded that the Board clearly should not have counted at least 8 absentee ballots toward the final total in the Contested Election and that an additional 96 absentee ballots in the Contested Election were counted even though their ballot envelopes did not contain statements required by § 115.283, which, according to § 115.295.2, means that the ballots were not lawfully counted. Thus, even without the 142 unlawfully counted walk-in absentee ballots, the remaining number of unlawfully counted ballots (96) still exceeds the 82 votes that separated the candidates in the Contested Election. The evidence in this case Respondent’s Brief - 32

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absentee ballots without complying with statutory requirements for receiving and

cast doubt on the validity of the Contested Election, and Hubbard has not followed the requirements established in Murphy v. Carron, 536 S.W.2d 30 (Mo. banc 1976), to challenge the sufficiency of the evidence supporting the trial court’s ruling.

II.

No Other Statute, Constitutional Provision, or Regulation Invalidates or Supersedes the Statutes Governing the Use of Absentee Ballots. (Responding to Hubbard’s First and Second Points Relied Upon.)

Hubbard’s brief sets up a paradox, in that she first argues (in the context of an

election contest) that § 115.291, RSMo., violates the Voting Rights Act of 1965, the U.S. Constitution, and the Missouri Constitution, then immediately assigns error to the trial court for (in her words) “grant[ing] a declaratory judgment regarding the validity of a state regulation within an election contest.” App. Br. at 23. Of course, neither party asked the trial court to make a declaratory judgement regarding the validity of any legal provision, nor did the trial court’s judgment purport to make such a declaration. Hubbard did not assert any affirmative defenses, nor did she file a cross-claim asserting that Missouri’s absentee ballot statutes violated any constitutional provision or federal law.

Her arguments regarding the Voting Rights Act, the U.S. and Missouri Constitutions, and § 115.225.4, RSMo., have not properly been preserved. Nonetheless, Franks will address them.

A. Neither the Trial Court’s Judgment Nor §§ 115.275 to 115.304, RSMo., Conflict With the Voting Rights Act of 1965.

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plainly supports the trial court’s firm conviction that these demonstrated irregularities

from ordering a new election in which all of the jurisdiction’s registered voters will be permitted to participate where the evidence has shown that violations of the state’s election laws cast doubt on the initial election’s validity. App. Br. at 18. Hubbard cites no cases to support her contention, nor does she identify any voter who might be denied the right to vote as a consequence of the applicable state statutes or the trial court’s judgment. She merely suggests that the invalidation of a tainted election due to violations of state law somehow denies individuals the right to vote. Even if Hubbard had properly preserved this argument (and Franks contends that she has not), neither the facts nor the law support this contention.

Futhermore, the implications of Hubbard’s Voting Rights Act argument are extraordinary and absurd. She suggests that the Voting Rights Act would be violated by the rejection of an absentee ballot for any reason not related to the citizen’s qualification to vote. Presumably, this would forbid election authorities to reject any absentee ballot envelopes that have not been notarized, because the notarization is arguably “not material in determining whether [the voter] is qualified under State law to vote in such election[.]”

See, e.g., Exhibit 13. It would likely also forbid election authorities from rejecting absentee ballot envelopes that were not received before the statutory deadline for accepting them, because the time (or date) at which the Board received the absentee ballot envelope is arguably “not material in determining whether [the voter] is qualified under State law to vote in such election[.]” Hubbard’s interpretation of the Voting Rights Respondent’s Brief - 34

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Hubbard asserts that the Voting Rights Act of 1965 precludes a Missouri court

cast absentee ballots, because one’s ability to go to regular polling places on election day is arguably “not material in determining whether [the voter] is qualified under State law to vote in such election[.]” This Court must not indulge this baseless argument.

B. Sections 115.275 to 115.304 Do Not Conflict With Any Constitutional Provision.

In light of Hubbard’s apparent argument that either Missouri’s absentee ballot statutes or its election contest statutes might violate citizens’ right to vote, as protected under the U.S. or Missouri Constitutions, Franks reiterates that Hubbard has not identified any voter whose right to vote is imperiled by these statutes or by the trial court’s judgment in this case, and he also reiterates that Hubbard has not properly preserved this question for consideration. Every registered voter in the 78th District who wishes to vote in the new, lawfully-conducted election that has been ordered for September 16, 2016, will have the opportunity to do so.

Furthermore, as noted above in Section I(D), Missouri courts have long made clear that casting an absentee ballot is a special privilege, not a constitutional right. The Missouri Court of Appeals discussed this issue in State ex rel. Bushmeyer v. Cahill, 575 S.W.2d 229, 234 (Mo. App. 1978), saying: To vote by absentee ballot is not a matter of inherent right but rather a special privilege available only under certain conditions[.] …By the very nature of absentee voting, the voter is declaring that he will be unable to Respondent’s Brief - 35

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Act might even create a federal requirement for Missouri to allow all registered voters to

place on the date of the election. Rather than forsake his opportunity to vote, however, he utilizes his absentee privilege. …By exercising the privilege of voting absentee, the voters accepted the risks accompanying that manner of voting. These risks are best borne by the person utilizing the privilege.

To the extent that Hubbard invokes Article VIII, § 7 of the Missouri Constitution as a basis for invalidating either Missouri’s absentee ballot statutes, its election contest statutes, or the trial court’s judgment, Franks points out that this provision does not create a constitutional right to vote absentee, but merely empowers the legislature, if it so chooses, to create general laws that will allow for the use of absentee ballots. The Missouri General Assembly has indeed created such general laws and, contrary to the implication of Hubbard’s argument, Article VIII, § 7, does not give citizens an unlimited right to cast an absentee ballot in any election and without complying with the generallyapplicable statutory prerequisites for doing so.

C. Sections 115.275 to 115.304 Do Not Conflict With § 115.225, RSMo. Hubbard argues that, through § 115.225, RSMo., the General Assembly empowered the Secretary of State to authorize an undefined absentee voting procedure that in no way complies with the explicit requirements enumerated in §§ 115.275 to 115.304, RSMo. This is incorrect.

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participate in the regular voting process at the officially designated polling

devices and the automatic tabulating equipment used in electronic voting systems” before those systems are used by election authorities in the state in connection with the general conduct of elections. As the trial court noted, § 115.227, RSMo., states that “All provisions of law not inconsistent with [§§ 115.225 to 115.235] shall apply with full force to elections in each jurisdiction using an electronic voting system.” The question the trial court confronted – which, to the extent that Hubbard properly preserved any question regarding these statutes, is the correct one – is whether the absentee ballot statutes are inconsistent with §§ 115.225 to 115.235. The trial court was correct in concluding that these provisions are not inconsistent.

Sections 115.225 to 115.235, RSMo., do not require the use of electronic voting systems in any jurisdiction, they merely provide guidelines concerning the capabilities and uses of electronic voting devices. The Secretary of State is authorized to promulgate regulations that will fill in some of the details regarding the capabilities and uses of these electronic voting devices, but no part of these statutes empowers the Secretary of State to supersede the requirements of Missouri’s absentee ballot statutes. Indeed, the subsection that Hubbard relies on to imply this sort of power, § 115.225.3, RSMo., is actually quite limited, focusing on whether computerized voting systems “may allow for the storage of processed ballot materials in an electronic form.” This subsection authorizes the Secretary of State to allow the use of computerized voting systems with this capability, even if another statute might otherwise prevent the use of computerized voting systems Respondent’s Brief - 37

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Section 115.225.1, RSMo., allows the Secretary of State to “approve the marking

a regulation to wipe out the clear, detailed requirements for the use of absentee ballots that the legislature has established. The trial court was absolutely correct to conclude that there is no conflict between §§ 115.225 to 115.235 and Missouri’s absentee ballot statutes. There being no conflict, § 115.227 states that the requirements of Missouri’s absentee ballot statutes “shall apply with full force and effect to elections in each jurisdiction using an electronic voting system.”

CONCLUSION For all of the reasons above, this Court should affirm the trial court’s judgment, thereby allowing the registered voters of the 78th State House District to cast their votes on September 16, 2016, in a fair, lawfully-conducted election that will determine whether Bruce Franks, Jr., or Penny Hubbard will be the Democratic Party’s nominee in the November 8, 2016, general election to determine who will represent the District in the Missouri House of Representatives.

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with this capability. It certainly does not give the Secretary of State carte blanche to use

_______________________________ David E. Roland, Mo. Bar #60548 14779 Audrain Road 815 Mexico, Missouri 65265 Phone: (314). 604-6621 Fax: (573). 562-6122 Email: libertyandjustice@gmail.com Attorney for Contestant-Respondent

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Respectfully submitted,

I hereby certify that this brief complies with the type-volume limitation of Rule 84.06(b). of the Missouri Rules of Civil Procedure. This brief was prepared in Microsoft Word 2013 and contains no more than 10,213 words, excluding those portions of the brief listed in Rule 84.06(b). of the Missouri Rules of Civil Procedure (less than the 13,950 limit in the rules). The font is Times New Roman, double-spacing, 13-point type.

I hereby certify that I electronically filed a copy of the foregoing with the Clerk of the Missouri Court of Appeals, Eastern District, and caused the same to be served on: 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 Michael J Colona, MO #42672 COLONA & GENTLE, L.L.C. 4387 Laclede Avenue St. Louis, MO 63108 (314). 531-1333 mikecolonalaw@gmail.com

_______________________________ David E. Roland

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RULE 84.06(c). CERTIFICATION AND CERTIFICATE OF SERVICE