ST. LOUIS • On the first day of a trial to determine if the election results of the Aug. 2 Democratic primary for the 78th District state House seat should be overturned, St. Louis Election Board Chairwoman Joan Burger testified Wednesday that a grand jury will investigate whether criminal charges should be filed in the matter.
St. Louis Circuit Attorney Jennifer Joyce said in a statement afterward that she couldn’t comment on the process used in her investigation because it is ongoing.
While Joyce had said Tuesday that she was investigating, Burger’s testimony was the first word that a grand jury would be involved.
Joyce emphasized that the criminal investigation has nothing to do with the civil trial, which is being held to determine if St. Louis Circuit Court Judge Rex Burlison should order a new election.
Bruce Franks Jr., a 31-year-old activist, lost the primary race to incumbent Penny Hubbard by 90 votes, but he contends that irregularities involving absentee votes obtained by Hubbard cost him the election.
On Wednesday, Franks’ attorney, Dave Roland, said at least 273 absentee votes should not have been counted. More than half were ballots cast in person at the Election Board offices without envelopes, which bear the voter’s signature. Election authorities disagree about whether absentee ballots should count if they are not contained in a sealed envelope opened on Election Day, as specified by state law.
Some election authorities allow people to vote absentee at their offices just as they would on Election Day — including by touchscreen or paper ballot. But state law outlines specific steps for casting, challenging and counting absentee votes — processes that involve envelopes.
As Roland repeatedly pointed out Wednesday, without envelopes, campaigns have no way of challenging absentee votes.
The trial is expected to move quickly. 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 this coming Tuesday morning.
Wednesday’s proceeding was mostly procedural. Burger was the only witness called.
Burlison’s first order of business was to reject a motion to dismiss the case made by Hubbard’s attorney, Jane Dueker.
A story published Wednesday, based on an ongoing Post-Dispatch investigation into the race, included interviews with several voters who reported irregularities. Two said people claiming to be Hubbard campaign workers actually took their blank ballots and cast votes for them. Others said they were labeled as being “incapacitated” on their absentee ballot applications, even though they never claimed to be.
In her opening argument, Dueker said: “The election process worked. They can’t claim a single vote wasn’t the voter’s.”
Dueker, however, conceded that as many as 16 absentee ballots probably should have been thrown out by the Election Board. However, those would not have affected the outcome and a new election would only disenfranchise voters, she said.
Roland said a new election is the only option to ensure “voters of the 78th District have their voices heard in a lawful manner.”
Missouri Secretary of State Jason Kander on Wednesday issued a statement on the Post-Dispatch investigation.
“The report today in the Post-Dispatch is very troubling,” Kander’s statement says. “The U.S. attorney and the St. Louis city Circuit Attorney are already looking into this matter as well.”
He added that “action clearly needs to be taken by one of those entities” if allegations about irregularities are true.
Kander, a Democrat, is running for the U.S. Senate seat held by Republican Roy Blunt. A campaign spokesman for Blunt used the findings to criticize Kander.
“Jason Kander’s job is to make sure Missourians have confidence in the integrity of our elections. It is clear he has failed,” Tate O’Connor of the Blunt campaign said in a written statement.
The case has been problematic for local Democratic officials with varying political and financial interests.
Dueker and others have cautioned that contacting absentee voters is a form of intimidation that could suppress voting in minority communities. They have also accused Franks’ campaign of bolstering the Republican Party’s push for tougher voter ID laws.
Someone has been handing out copies of a statement to absentee voters that purports to come from U.S. Rep. William Lacy Clay, D-St. Louis. The message claims that inquiries that do not come from the St. Louis Board of Election commissioners are from individuals who want to suppress black voting.
“These questions are just a trick to confuse you and try to take away your right to vote,” the statement says.
The Post-Dispatch investigation relied heavily on interviews with voters who felt as though they had been persuaded to vote absentee for invalid reasons. Over the past two days, the newspaper has asked Clay’s representatives if the statement addressed to absentee voters came from him. Clay did not respond to requests to answer questions about it.
Joyce, a fellow Democrat, also has considered potential conflicts in the matter, said Susan Ryan, a spokeswoman for the circuit attorney’s office. In 2012, Joyce’s campaign committee donated $150 to Penny Hubbard’s campaign — a small amount by Missouri standards.
“Her job transcends what party she is in,” Ryan said.
Hubbard’s son Rodney Jr. was a lobbyist for St. Louis Mayor Francis Slay’s office from September 2013 until Aug. 15, according to Missouri Ethics Commission records.
A spokeswoman for Slay did not return a message seeking comment about why the relationship ended.