ST. LOUIS • An appellate court has ruled that the do-over election on Friday between Penny Hubbard and Bruce Franks Jr. for 78th District state representative will go on.
“There was substantial evidence to support the trial court’s decision, it was not against the weight of the evidence, and the court did not erroneously declare or apply the law. The judgment is affirmed,” Judge Roy L. Richter wrote on behalf of the Missouri Court of Appeals.
“No matter what happens Friday, we already won,” Franks said, adding that he had called attention to a “broken system that has no choice but to fix itself now.”
Jane Dueker, attorney for Hubbard, said Tuesday afternoon that no appeal would be made to the Missouri Supreme Court.
“She is going to focus on getting her disenfranchised constituents to the polls and winning this election for a second time,” Dueker said of Hubbard. “Obviously, she is very disheartened by the decision. The only people with constitutional rights — the voters — lost today.”
Circuit Judge Rex Burlison called Sept. 2 for a new election after a two-day trial centering on the absentee balloting process in the Aug. 2 Democratic primary between incumbent Hubbard and newcomer Franks. Specifically, the case focused on the 142 absentee votes made in person at the St. Louis Board of Election Commissioners office.
As reported Aug. 28 in the Post-Dispatch, all absentee ballots must be placed into a sealed envelope under state law. However, those cast at the Election Board office were not.
“These irregularities were more than petty procedural infirmities but abuses of the election law which cannot be ignored,” Burlison said. “The number of votes called into question exceed the margin of the apparent victor and is of sufficient magnitude to cast doubt on the validity of the initial election.”
Burlison’s made his decision two days after a Post-Dispatch investigation revealed multiple problems with absentee balloting.
Hubbard won the Aug. 2 primary by 90 votes. Franks received nearly 53 percent of the vote on Election Day, but Hubbard won 78.5 percent of the absentee ballots, giving her the victory.
Dueker argued both before Burlison and the appellate court that tossing the election violated the Voting Rights Act of 1965. In court Monday afternoon, Dueker said calling for a new election “disenfranchised people for irregularities that have no bearing whatsoever on a single vote.”
“Absentee voters have been stripped of any rights to ensure their vote is counted,” Dueker said Tuesday.
The appellate court, however, disagreed.
“Ordering a special election to replace the results of the original, improperly conducted election does not prevent qualified voters from casting a vote,” Richter wrote. “Every qualified voter will still retain his or her right to vote in the special election.
“Implementing procedures to safeguard against fraud helps ensure that qualified registers voters’ votes are not diluted by unlawful voter activity. These procedures, such as calling for a new election, effectively protect voters’ rights, not abridge them.”
Dave Roland, attorney for Franks, said: “This is one of the rare cases in which the party that lost the trial actually made their position worse by appealing. The Court of Appeals emphatically rejected every argument Hubbard’s attorney put forward and reaffirmed that, because the absentee ballot process is a special privilege that is also prone to abuse, it is critical that voters and election officials strictly adhere to the statutes governing the use of those ballots.”