Updated 4:00 p.m. Sept. 13 with comments from Jane Dueker. — The re-vote in the 78th House District is on.
The Missouri Court of Appeals on Tuesday upheld a lower-court ruling that the St. Louis Board of Election Commissioners improperly accepted at least 142 absentee ballots, putting the results of the Aug. 2 primary between incumbent Penny Hubbard and challenger Bruce Franks in doubt. Hubbard's attorney, Jane Dueker, said that ruling will not be appealed.
"Because the statutes regarding the protocol for absentee voting are not ambiguous and are mandatory under the Court’s precedent, we affirm the decision of the trial court,” wrote Judge Roy Richter in an appeals opinion joined by judges Phillip Hess and Colleen Dolan. St. Louis Circuit Judge Rex Burlison had ordered the new election just before Labor Day.
Throughout the trial, no one argued that any of the 4,300 voters in the Aug. 2 election did not vote for the candidate they wanted to vote for. And the appeals court acknowledged that “the general rule in cases dealing with ordering new elections is that ‘where an irregularity … has … not … 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 voters.”
That was exactly the point Dueker, Hubbard’s attorney, tried to emphasize on Monday during oral arguments.
“The remedy is far worse than anything that happened here,” Dueker said. “We don't throw out 4,316 votes on a technicality. We don't play gotcha voting in Missouri, and to actually accept their argument would be to overturn the will of these people."
But, the appeals court said, there’s a difference between the right to cast a ballot and the ability to use an absentee ballot. “Casting an absentee ballot is not a right but a privilege,” the opinion said. “A failure to follow the specific requirements of absentee voting laws is enough to find legal fraud,” and casts doubt on the validity of the election.
The opinion echoed the points Dave Roland, Franks’ attorney, emphasized on Monday in urging the judges to uphold a century of court precedent.
“In several of these cases, the court specifically addressed the question of, 'What if it wasn't the voter who made the mistake? What if the mistake was made by the election authority?'" Roland told the judges. "And in each of those instances, the court has said it does not matter. If the election authority makes the mistake, the law has still been violated. And each of these cases, it says compliance with the absentee voting statutes is mandatory."
The appeals court also rejected Dueker’s argument that a new election would disenfranchise voters. “Ordering a special election to replace the results of the original, improperly conducted election does not prevent qualified voters from casting a vote,” Richter wrote in the opinion.
“This is one of the rare cases in which the party that lost the trial actually made their position worse by appealing,” Roland wrote Tuesday in reaction to the appeals ruling. “The Court of Appeals emphatically rejected every argument Hubbard's attorney [Dueker] put forward and reaffirmed that, because the absentee ballot process is a special privilege that is also prone to abuse, it is critical that voters and election officials strictly adhere to the statutes governing the use of those ballots.”
Dueker called Tuesday's ruling "disheartening." The voter, she said, is the only person with constitutional rights at stake in the case, and wasn't mentioned once in the 17-page opinion. A new state law approved this year makes it perfectly clear that absentee votes may be cast on touch-screens or with optical scan ballots, she added, and absentee voters have lost the right to make sure that their vote counts.
"Bruce Franks wanted to eliminate absentee voting so he could win the election, and the courts have given him his wish," Dueker said.
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