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Judge considers new election in 78th House District race

Judge Rex Burlison (center) listens to attorneys on the first day of a trial to determine if there will be a new election in the 78th House District.
Rachel Lippmann | St. Louis Public Radio
Judge Rex Burlison (center) listens to attorneys on the first day of a trial to determine if there will be a new election in the 78th House District.

On Aug. 5, 2016, incumbent state Rep. Penny Hubbard, D-78th District, beat challenger Bruce Franks by 90 votes. Her entire margin of victory came from absentee ballots.

Franks and his attorney, Dave Roland, sued in an an effort to force a new election, arguing that irregularities in the absentee ballots made the results invalid.

The allegations made in the lawsuit, and problems uncovered by a St. Louis Post-Dispatch investigation were numerous and explosive:

  • Individuals lied about why they needed an absentee ballot;
  • Some people submitted duplicate absentee ballot applications;
  • Workers from the Hubbard campaign pressured people to use absentee ballots;
  • Individuals associated with the Hubbard family offered to fill in ballots for voters who weren't sure who to pick;
  • Workers at Election Board headquarters improperly accepted some absentee ballots.

But by late Wednesday, the end of the first day of testimony in front of Judge Rex Burlison in a downtown St. Louis courtroom, it appeared the case would come down to something much more mundane — envelopes. 
Here's why:

Envelopes are a very technical issue, but it's also a lot easier to prove that there are problems.

— The state's absentee voter procedures are laid out in section 115. A voter who will be unable to vote in person on Election Day for one of six reasons submits a written application for an absentee ballot. If that person is eligible to vote, they are mailed an absentee ballot and an envelope used to send the ballot back.

— That envelope is supposed to have four things written on it: the voter's name, mailing address, voting address, and the reason why the voter requested an absentee ballot.

— Per state law, an envelope that lacks any of the first three requirements should be automatically rejected. (Another provision of the same state law says a voter who fails to put the reason they voted absentee on the envelope can still have their vote counted.) But Joan Burger, a former judge in St. Louis and the chairman of the St. Louis Board of Election Commissioners, admitted several times in court that the elections office routinely accepted ballots that were missing addresses.

— State law also indicates that absentee ballots have to be received in their envelopes. But Burger also testified that individuals regularly come to the board of elections and vote absentee in person, using touch screens or optical scan ballots. That separates the vote from the voter, making it impossible for someone to challenge the voter's qualifications after the fact. For a regular absentee ballot that is successfully challenged, the envelope is never opened and the vote never counted.

— There are about 140 people who voted in-person absentee, 89 of them electronically. Another 70 or so envelopes came back without the three full required statements. Those two categories together make up much more than Hubbard's margin of victory.

Dave Roland, Franks' attorney, argues that the law is clear — those technical violations mean the ballot must be thrown out. Attorneys for Penny Hubbard say otherwise. Judge Burlison will have to figure out who is correct.

Ongoing investigations

Bruce Franks talks to Mary Wheeler-Jones, the Democratic director of elections for St. Louis, on August 17, 2016.
Credit File photo by Rachel Lippmann | St. Louis Public Radio
Bruce Franks talks to Mary Wheeler-Jones, the Democratic director of elections for St. Louis, on August 17, 2016.

  On the day Franks filed suit, 35 of his allies dropped off letters to the elections board alleging that ballot boxes had been left unlocked, there had been voter intimidation, and that "absentee ballots were obtained illegally, were tampered with, or both." Judge Burger, the elections board chair, said she turned those letters over to state and federal prosecutors. She also said a grand jury had started looking into the allegations.

 A spokeswoman for St. Louis Circuit Attorney Jennifer Joyce would not confirm Burger's claim, saying only that the office was continuing to review the allegations. "Beyond that, the Circuit Attorney does not discuss the status or process used to investigate criminal allegations," the statement continued. "The proceedings before Judge Burlison are entirely separate civil matters and have no bearing on the actions of law enforcement."

A spokeswoman for Secretary of State Jason Kander confirmed earlier this month that the office's Elections Integrity Unit was investigating two complaints about the primary election. An update on the status of those investigations was not immediately available.

Officials with the election board told Judge Burlison that they would need to know whether they have to plan for a new primary election by Tuesday morning the latest, but preferred a ruling by Friday. The judge did not give an indication when he might rule, but seemed to accept that any decision would likely be appealed.

Follow Rachel Lippmann on Twitter: @rlippmann

Rachel is the justice correspondent at St. Louis Public Radio.

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