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Bruce Franks files lawsuit

Bruce Franks (center), who was a candidate for the 78th District State Representative seat, listens as his lawyer Dave Roland talks to media about a formal challenge to the election Roland filed on behalf of Franks on Wednesday, Aug. 17, 2016. Bruce lost the Aug. 2 primary to incumbent Penny Hubbard by 90 votes. In his challenge Franks contends absentee ballots were "obtained illegally, were tampered with, or both." Photo by David Carson, dcarson@post-dispatch.com

ST. LOUIS • After sifting through hundreds of absentee ballot records from the Aug. 2 primary, the attorney for a 31-year-old unsuccessful state House candidate noticed something odd: More than 140 people voted absentee without using an envelope.

Those voters appeared in person at the St. Louis Election Board offices in downtown St. Louis in the weeks prior to the election. Some voted on touch screens; others slipped their paper ballots in a box — seemingly trivial details that may determine the fate of a legal challenge to toss out an election.

State law outlines specific steps for absentee voting. And it always involves envelopes.

Because the 140 votes were accepted without envelopes, attorney Dave Roland argues, the election results should be thrown out. If he’s right, election authorities across Missouri may be violating state law.

In the Aug. 2 Democratic primary, Bruce Franks Jr. lost to incumbent state Rep. Penny Hubbard by 90 votes. Franks actually won the Election Day contest, but Hubbard’s overwhelming advantage in absentee ballots gave her the victory.

Franks and Roland filed two lawsuits: one to overturn the election and a second to force the Election Board to turn over hundreds of applications and ballot envelopes for review.

The board balked at that, but on Tuesday a judge ruled it had violated Missouri’s open record law by keeping them secret.

So Roland spent Thursday and Friday reviewing the records. He says he found numerous examples of improperly notarized ballot envelopes and ballot applications he believed were suspect.

But it was those roughly 140 in-person absentee votes that sent him back to the courtroom Friday to amend his lawsuit seeking to have the election overturned.

Roland told Circuit Judge Julian Bush that he would “lean very heavily on the absentee ballots that were cast at the election board office” to prove improprieties.

A trial is scheduled for Wednesday morning.

That proceeding is expected to move swiftly to ensure that, if necessary, a special election occurs before the Nov. 8 general election.

Jane Dueker, one of Hubbard’s attorneys, complained to Bush on Friday that Roland was making general allegations without specific evidence.

“I can’t prepare a case if I don’t know what I’m fighting against,” Dueker said.

Joan M. Burger, the chairwoman of the St. Louis Board of Election Commissioners, said people have voted absentee using electronic machines at the election board since 2006. She said she wasn’t aware the practice may not be legal.

“We are not in compliance with what I think is an outdated state statute,” Burger said. “It’s a technical issue, and it doesn’t mean that those votes are invalid.”

Roland argued that the envelope provisions had an important purpose.

“I intend to see that the court applies the law as written,” he said.

The fallout could reverberate far beyond the city. Other jurisdictions also don’t always require envelopes for absentee ballots.

St. Louis County, for example, allows in-person absentee voters to use machines and paper ballots without envelopes.

Eric Fey, the county’s Democratic Director of Elections, pointed to a requirement in the Missouri Code of State Regulations that election authorities allow in-person absentee voters to use the same equipment as other voters.

As far as he knows, no one has ever questioned the county on the practice, Fey said.

But state laws trump regulations, and other election authorities in the region, such as those in St. Charles and Lincoln counties, won’t accept absentee ballots without envelopes to uphold the integrity of the process.

There should be no difference between how in-person and mailed-in absentee ballots are cast, said Mike Kreuger, elections supervisor for Lincoln County.

Under state law, representatives from opposing campaigns are allowed to witness election workers as they unseal envelopes containing absentee ballots and challenge them if an election violation is suspected. It’s a similar to having challengers at precincts question voting eligibility — which is not a common practice.

In his amended petition, Roland argues that once a ballot is placed in a box or filled out electronically, it becomes impossible to challenge, because it is no longer connected to the voter. Ballots contain no information identifying the voter.

For about a month, Roland has raised concerns about the potential abuse of absentee voting by Hubbard’s campaign, arguing that election results over time show a spike in absentee votes when a member of the Hubbard family — a local political dynasty — runs for office.

Shortly after the Aug. 2 primary, the Post-Dispatch obtained records revealing that in dozens of instances, voters in the race in question had submitted duplicate absentee ballot applications. Some of the voters said they did not fill out two applications, and they did not understand why another had been filled out in their name.

The paper has also reviewed ballot envelopes and applications at the Election Board offices. Of the roughly 550 ballot envelopes containing ballots counted on Election Day, 88 were not postmarked — indicating that they likely were hand-delivered.

Missouri law requires that any ballots hand-delivered to the board come from the voter or a second-degree relative — such as a spouse, parent or grandparent.

Board workers asserted that the post office sometimes fails to postmark letters they deliver. Mary Wheeler-Jones, the board’s Democratic director, said the board doesn’t allow anyone to hand deliver multiple absentee ballots.

But there is no way to verify that. The board doesn’t record the names of people who drop off ballot envelopes.

That process is handled differently in St. Louis, St. Charles and Lincoln counties. In each of those jurisdictions, election authorities require anyone delivering a ballot to sign an affidavit.

The 78th District cuts a long, narrow path that hugs the Mississippi River. It includes Carr Square and Old North St. Louis, much of downtown and some south St. Louis neighborhoods, such as Gravois Park and Benton Park.

When he began his campaign, Franks, a Benton Park West resident, reviewed the prior election results in Hubbard’s races. Hubbard, from Carr Square, had never received more than 1,800 votes in a primary. If Franks could get more than 2,000, he believed, he would defeat her. As he knocked on thousands of doors, he said people warned him about the effectiveness of the Hubbards’ absentee vote program.

On Aug. 2, Franks received 2,113 votes. Hubbard got 2,203. But Franks won nearly 53 percent of the votes cast on Election Day. It was Hubbard’s 416 absentee votes that put her on top.

Burger said the board was taking “all of this seriously.”

“Whatever procedures need to be updated or changed, will be, and they will be by Nov. 8,” she said.

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Stephen Deere is a reporter for the St. Louis Post-Dispatch.