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Franks v. Hubbard

Court of Appeals of Missouri, Eastern District, Fifth Division

September 13, 2016

BRUCE FRANKS, JR, Respondent,
v.
PENNY V. HUBBARD, Appellant.

         Appeal from the Circuit Court of the City of St. Louis Cause No. 1622-CC09996 Honorable Rex M. Burlison

          Roy L. Richter, Judge

         I. INTRODUCTION

         This is an election contest[1] arising out of the August 2, 2016 Primary Election ("the Election") to nominate a Democratic candidate to serve the 78th State House District in the Missouri House of Representatives ("the 78th District"). Respondent Bruce Franks, Jr. ("Franks") contends that 246 absentee ballots were improperly accepted and counted by the City of Saint Louis Board of Election Commissioners ("the Board"). Appellant Penny V. Hubbard ("Hubbard") concedes 8 absentee ballots were unlawfully cast and should not count but she argues the other 238 votes were lawfully cast and properly accepted by the Board. The Secretary of the State certified the results of the Election on August 25, 2016, finding Hubbard won by a total vote of 2, 203 to 2, 113.

          Franks filed a Petition for Election Contest alleging "irregularities of sufficient magnitude" to cast doubt on the validity of the Election. Franks further alleged the Board improperly counted a significant number of absentee ballots in the election. Franks requested the trial court to order the Board to hold a new primary election in the 78th State House District ("the 78th District"). The trial court granted Franks' request and ordered the Board to conduct a special election for the 78th District on September 16, 2016. Hubbard appeals the order and judgment. Because the statutes regarding the protocol for absentee voting are not ambiguous[2] and are mandatory under this Court's precedent we affirm the decision of the trial court.[3]

         II. FACTS AND PROCEDURAL BACKGROUND

         A. Election Results

         On election day, Franks garnered 1, 999 non-absentee votes and Hubbard received 1, 787 votes. However, Hubbard collected a substantial percentage of absentee votes; Hubbard earned 416 absentee ballot votes, while Franks received 114 votes. Franks earned 212 more votes than Hubbard from non-absentee voters and Hubbard collected 302 more votes than Franks from absentee voters. Consequently, Hubbard prevailed in the primary race with a 90 vote margin of victory, tallying 2, 203 votes compared to Franks' 2, 113.

         Results of the August 2, 2016 Election

Hubbard

Franks

Non-absentee Votes at the Poll

1, 787 (47.2%)

1, 999 (52.8%)

Absentee Votes

416 (78.5%)

114 (21.5%)

Total Votes

2, 203 (51.0%)

2, 113 (49.0%)

          B. Contested Absentee Ballots

         Franks initially contested the validity of 246 absentee votes the Board counted. The parties stipulated that 8 of those votes were unlawfully cast by people who did not live in the jurisdiction and should not have been counted. Accordingly, this dispute concerns the validity of 238 absentee votes. Franks contends that many of the 238 votes were unlawfully cast for different reasons. More specifically, Franks alleges there were five groups of improperly counted absentee votes in violation of § 115.283[4]:

1. Walk-in absentee votes not placed in executed ballot envelopes:
142 of the absentee votes were cast at the central polling location of the Board and none of them were placed in an executed ballot envelope.
2. Ballot envelopes missing voter's written address underneath signature:
57 absentee votes were cast without the voter writing their address underneath their signature on the ballot envelope.
3. Ballot envelopes missing assistant's signature:
11 absentee voters received assistance completing their ballots and their assistant did not include a statement similar to the example provided in § 115.283.5, RSMo 2000.
4. Ballot envelopes missing voter's written address and signed affidavit:
1 absentee voter did not include her full address on her absentee ballot envelope or include a statement similar to the example provided in § 115.283.5 from the person assisting her.
5. Ballot envelopes requiring notarization but that were not notarized:
The Board sent 27 absentee ballot envelopes to voters which stated no notarization was required. However, when these ballots were returned to the Board, the stated reason given on the absentee ballot envelopes required notarization.

         C. Trial Court's Findings and Conclusions

         In its Memorandum, Order and Final Judgment ("Judgment"), the trial court found the Board "disregarded" the "tedious and specific statutory process" created by the Missouri legislature and stated the statutory provisions "must be specifically followed." Furthermore, the trial court was "firmly convinced" that the irregularities in the collection and acceptance of absentee ballots "affected the outcome of the election, " and the irregularities were more than "petty procedural infirmities" that violate election law. Although, the trial court found that the number of votes in dispute was 238, the trial court concluded that 142 of those votes, in addition to the 8 votes the parties stipulated were improperly counted, "violated Missouri law" and exceeded the apparent margin of victory (90 votes). Accordingly, the trial court held that the irregularities were of "sufficient magnitude to cast doubt on the validity of the initial election, " and it ordered the Board to conduct a "special election" for the District on Friday, September 16, 2016. Hubbard now appeals.

         III. STANDARD OF REVIEW

         The trial court's order to hold a special election must be affirmed unless it is not supported by substantial evidence, it is against the weight of the evidence, or it erroneously declared or applied the law. Marre v. Reed, 775 S.W.2d 951, 954 (Mo. banc 1989). We review questions of law de novo. Garza v. Valley Crest Landscape Maint., ...


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