Court of Appeals of Missouri, Eastern District, Fifth Division
from the Circuit Court of the City of St. Louis Cause No.
1622-CC09996 Honorable Rex M. Burlison
an election contest 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.
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 and are mandatory under this
Court's precedent we affirm the decision of the trial
FACTS AND PROCEDURAL BACKGROUND
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.
of the August 2, 2016 Election
Non-absentee Votes at the Poll
1, 787 (47.2%)
1, 999 (52.8%)
2, 203 (51.0%)
2, 113 (49.0%)
B. Contested Absentee Ballots
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:
1. Walk-in absentee votes not placed in executed ballot
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
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
4. Ballot envelopes missing voter's written address and
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
5. Ballot envelopes requiring notarization but that were not
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.
Trial Court's Findings and Conclusions
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.
STANDARD OF REVIEW
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.,