498 S.W.3d 862
Mo. Ct. App.2016Background
- August 2, 2016 Democratic primary for Missouri House 78th District: Hubbard certified winner 2,203 to Franks 2,113 (90-vote margin).
- Franks contested the election, alleging 246 absentee ballots were improperly accepted; parties stipulated 8 were illegal, leaving 238 ballots in dispute.
- Major categories of challenged absentee ballots: 142 in-person absentee votes cast on electronic machines without the statutorily required signed/notarized ballot envelopes; 57 envelopes missing voter address; 11 missing assistant’s sworn statement; 1 missing both address and assistant affidavit; 27 returned with reasons requiring notarization though Board had sent envelopes stating no notary required.
- Trial court found the Board disregarded mandatory absentee procedures, concluded the irregularities (especially the 142 in-person absentee ballots lacking envelopes) constituted legal fraud and exceeded the margin of victory, and ordered a special election.
- On appeal, the court affirmed: absentee procedures in §115.283 are mandatory; failure to use envelopes for in‑person absentee voting was an irregularity of sufficient magnitude to cast doubt on the election outcome.
Issues
| Issue | Plaintiff's Argument (Franks) | Defendant's Argument (Hubbard) | Held |
|---|---|---|---|
| Whether Board’s failure to require statutory absentee ballot envelopes for in‑person electronic absentee voting is an irregularity warranting a new election | The Board ignored mandatory absentee procedures; missing envelopes and affidavits created legal fraud and undermined ability to challenge ballots, affecting outcome | The errors were technical, attributable to election officials, and there is no evidence voters intended fraud or that votes were miscast | Held: Failure to follow §115.283 is an irregularity of sufficient magnitude; absentee requirements are mandatory and legal fraud results from noncompliance, so new election affirmed |
| Whether the Secretary of State regulation authorizing electronic absentee voting overrides Chapter 115 envelope/affidavit requirements | N/A (Franks relies on strict Chapter 115 compliance) | The regulation and §115.225 permit electronic absentee voting without envelopes; longstanding Board practice made it permissible | Held: Regulation does not conflict with Chapter 115; absentee statutes control and must be followed; regulation cannot expand statutory requirements |
| Whether ordering a new election violates voters’ rights or the Voting Rights Act/constitutions by cancelling valid votes | N/A | A new election invalidates thousands of qualified votes and abridges constitutional and statutory voting rights | Held: A remedial special election does not abridge the right to vote; it preserves voting integrity and does not violate the Voting Rights Act or constitutions |
Key Cases Cited
- Elliott v. Hogan, 315 S.W.2d 840 (court of appeals 1958) (Missouri absentee voting procedures are mandatory)
- Barks v. Turnbeau, 573 S.W.2d 677 (Mo. App. 1978) (widespread absentee-procedure violations can justify ordering a new election)
- Gantt v. Brown, 142 S.W. 422 (Mo. 1911) (an absentee vote cast contrary to statutory formalities constitutes legal fraud)
- Straughan v. Meyers, 187 S.W. 1159 (Mo. 1916) (absentee ballot privileges are conditional on compliance with statutory requirements)
- Royster v. Rizzo, 326 S.W.3d 104 (Mo. App. 2010) (distinguishes routine polling-place irregularities from absentee-procedure failures when assessing whether to order new election)
- McDonald v. Board of Election Comm’rs of Chicago, 394 U.S. 802 (U.S. 1969) (federal constitution distinguishes fundamental right to vote from state-provided absentee voting procedures)