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4 things to know about the never-ending 78th House District primary

Attorneys for Bruce Franks, Penny Hubbard, and employees with the St. Louis Board of Election Commissioners examine absentee ballot envelopes during a court hearing on Sept. 1, 2016.
Jason Rosenbaum | St. Louis Public Radio
Attorneys for Bruce Franks, Penny Hubbard, and employees with the St. Louis Board of Election Commissioners examine absentee ballot envelopes during a court hearing on Sept. 1, 2016.

The Missouri Court of Appeals is scheduled to hear arguments Monday afternoon on whether voters in the 78th House District in St. Louis will get a chance to vote again.

Right now, the do-over Democratic primary is scheduled for Friday. It is one of the fastest turn-arounds the St. Louis Board of Election Commissioners has ever faced.

Most of the briefs for the case have already been filed, so we've got a sense of what lawyers for incumbent Penny Hubbard and challenger Bruce Franks will say to the appeals court panel.

But first, some background:

Bruce Franks actually won the Aug. 2 primary ... if you count only the voters who showed up at the polls on election day. But a massive absentee push put Penny Hubbard over the top by 90 votes.

Franks, who had been warned about the high percentage of absentee ballots that went to Hubbard family candidates in previous races, sued claiming that problems with absentee ballots put the result of the original election in doubt.

But while the allegations made by Franks and the problems discovered in a St. Louis Post-Dispatch investigation were serious, the two-day trial would focus on something a lot more mundane — envelopes. Ultimately, so would Circuit Judge Rex Burlison. In his Sept. 2 opinion ordering a new election, he wrote that while there was no evidence of fraud, the St. Louis  Board of Election Commissioners had illegally accepted ballots from 142 people who voted absentee at the elections board on electronic machines. That was more than the margin of victory, and therefore enough to call for a new election.

What do Hubbard's attorneys say?

Technicalities do not eliminate the right of a person to cast a ballot, especially when the voter did nothing wrong.

Attorney Jane Dueker, who represents Hubbard, argues in her brief that other Missouri courts have refused to throw out elections that had much more serious irregularities. "The seminal election contest cases of the state of Missouri disagree that the draconian application of form over substance that takes away this most fundamental civil right of 4,316 voters that did everything that was asked of them by the Election Board," the brief reads. The remedy, when there's a technical problem, is to throw out the individual ballot, Dueker argues, not the entire election. Doing so violates the state and U.S. constitutions, as well as the federal Voting Rights Act.

Additionally, she argued, in-person, absentee voting is authorized by state law and regulations developed by the Missouri Secretary of State. Judge Burlison improperly decided whether the state regulation was valid in an elections case, the brief says.

What does Franks' attorney say? 

Bruce Franks and state Rep. Penny Hubbard
Credit Courtesy of Bruce Franks' campaign and House Communications

Absentee voting is a privilege that you earn, by following the laws of the state, not a right.

The laws governing absentee ballots are unambiguous, writes Dave Roland, the attorney representing Franks. They do not allow election authorities to accept or count an absentee ballot that is not in an envelope, or lacks the other requirements outlined in state statute.

The fact that all voters who submitted absentee ballots were legally qualified to vote does not change anything, the brief continues. "Whenever absentee ballots are illegally or improperly cast or counted, they are void and thus constitute legal fraud."

Finally, Roland says, new elections do not disenfranchise voters. To the contrary, he says, the re-do primary creates more opportunities to vote, while removing the irregularities in the Aug. 2 contest.

What's next?

The appeals judges are hearing this case on an expedited schedule. A ruling is expected in the next few days. An appeal to the Supreme Court of Missouri is possible, but unlikely.

Secretary of State Jason Kander, a Democrat, did not find enough evidence to warrant issuing a probable cause statement, but turned the result of his investigation over to circuit attorney Jennifer Joyce. U.S. Rep Lacy Clay, D-1st District, is a  strong ally of the Hubbard family. He is asking U.S. Attorney General Loretta Lynch to intervene in the election challenge

Absentee voting in the primary redo, which is already underway, ends Sept. 15. Voters will not be able to use electronic voting machines to cast an absentee ballot. If Burlison's ruling stands, and the election goes forward, polls in the 78th District will be open from 6 a.m. to 7 p.m. on Sept. 16. Elections officials will try to get the results certified quickly.

"The end game on that is military absentee ballots are supposed to be available on Sept. 23, so we need the certification quickly enough that we can have a [general election] absentee ballot available for military personnel," Erwin Switzer, the chair of the St. Louis election board told reporters on Sept. 7. He said he has talked to Secretary of State Jason Kander about the need for a quick certification.

Follow Rachel Lippmann on Twitter: @rlippmann

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

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