ST. LOUIS • As attorney Jane Dueker said Thursday afternoon, “it comes down to the envelopes.”
Dueker made the remark after the end of arguments in a two-day civil trial regarding absentee balloting in the Aug. 2 Democratic primary for the 78th District Missouri House race.
Dueker represented incumbent Penny Hubbard, who won the race by 90 votes. Hubbard did so by capturing 78.5 percent of the absentee ballots.
During Thursday’s action, Dueker repeatedly fended off claims by Dave Roland, attorney for Hubbard opponent Bruce Franks Jr., that election irregularities, including inconsistent policies by the St. Louis Election Board of Commissioners, show the need for a new election to be held.
An ongoing Post-Dispatch investigation on Wednesday revealed multiple problems with absentee ballots in the Aug. 2 election.
Roland centered his case on the 142 absentee ballots that were cast at the Election Board office downtown. He cited state law that says all absentee ballots must be received in a sealed envelope. The envelope provides the signature of the voter, a place to mark one of the six reasons the voter is voting absentee and a place to notarize the ballot, which must be done in all cases except those in which the voter claims “incapacity” as a reason for casting an absentee ballot.
Roland says without the envelope, there is no way to challenge the vote. Dueker, along with the three Election Board officials Roland called to the stand, said there is no reason — and no way — to cast an absentee ballot in person with an envelope.
At the Election Board office, the voter must complete an absentee ballot application. After it is filled out, which includes marking a reason the voter expects to not be able to vote at the polls on Election Day, an Election Board official verifies that the voter is registered and the signature on the application matches what is in the board database.
These ballots were the ones Circuit Judge Rex Burlison asked the most questions about on both days. State law outlines specific steps for casting, challenging and counting absentee votes — processes that involve envelopes.
On Day 2, Roland hammered away at inconsistencies contained on the envelopes of absentee ballots that were mailed in.
In some cases — Roland said about 10 — voters marked a reason such as “absence” from the city on their absentee ballot applications and on the envelopes, without getting the envelope notarized as required.
“It was human error, I guess,” said Bettie Williams, the Election Board’s deputy Republican director.
In pointing out that the Election Board rejects some ballots for errors and not others, Roland said it “adds to the question about the legitimacy of the election.”
After spending an extended amount of time asking Williams about the procedure for absentee balloting, Dueker interjected, prompting Burlison to ask if she had an objection.
Flustered, Dueker waved her arms and said: “I don’t have one.” After turning and walking back to her table, she added: “The stupidity.”
In cross-examination, Dueker pointed out that some people who marked their ballots incorrectly were on the board’s permanent disability list, which would require no notary but should be marked “incapacity” not another reason such as “absence.”
“Is it possible you were accepting these ballots so you were not jacking around disabled people?” Dueker said.
“Yes,” Williams replied.
In his attack on the consistency of Election Board policies and procedures, Roland also questioned the 86 rejected absentee ballots. In several cases, the ballots were returned by the Postal Service as undeliverable. But Roland asked Pamela Lake, the board’s Democratic absentee supervisor, about the others, including those rejected for not having a signature or for not being notarized.
He called her attention to absentee ballots mailed in well advance of the Aug. 2 election.
“So if it is three weeks before the election, and the vote is rejected, would the voter know he would still be able to vote at the polls?” Roland asked Lake. “No,” she said. “If it is rejected, the voter is not notified.”
When Roland asked her why not, she said: “When I started, that was not the policy of the board.” Lake has been an Election Board employee since 2013.
She did say, however, that the board has notified voters when their ballot applications were incorrectly filled out.
His point was to show that if voters had been notified that their ballots were rejected, they could have sought another application.
Burlison told the attorneys to get all their written arguments to him so he could begin reviewing and writing his opinion on Friday.
On Wednesday, Election Board attorney Michael Stokes said that in order to have an election before the Nov. 8 general election, the board needs a decision no later than Tuesday morning.