ST. LOUIS • After a judge ruled that the St. Louis Election Board violated the law in an Aug. 2 primary and ordered a new election, the first heads to roll belonged to those with the most power.
On Monday, Gov. Jay Nixon, a Democrat, replaced Chairwoman Joan M. Burger and Board Secretary Andrew L. Schwartz, citing a prominent sentence in St. Louis Circuit Judge Rex Burlison’s 22-page Friday ruling. Burlison said that election irregularities in the contest between Bruce Franks Jr. and Penny Hubbard for the 78th District Missouri House seat were “solely the responsibility of the City of St. Louis Board of Election Commissioners,” not of voters.
“In other words, the board was not doing its job,” Nixon said.
Erwin “Erv” Switzer, a Democrat and partner of the law firm Greensfelder Attorneys at Law, is the new chairman. Al W. Johnson, a Republican and founder of New Covenant Legal Services, which provides legal services to low-income people in St. Louis, is the new secretary.
Whether Burger and Schwarz were actually “fired,” may come down to semantics.
Both were serving in expired terms. In light of some of the irregularities that have been uncovered, Nixon said, “I thought the best thing to do was to put new people in.”
Switzer and Johnson’s terms begin immediately and end with Nixon’s term: on Jan. 10.
Burger declined to comment. Schwartz did not return a voice mail.
In court last week, Franks’ attorney, Dave Roland, pointed to a number of irregularities as he argued that at least 238 votes should have been rejected by the Election Board. But Burlison’s ruling centered on the state laws that provide specific steps for accepting, counting and challenging absentee votes.
As reported in the Post-Dispatch, those steps are always supposed to involve envelopes.
But the St. Louis Election Board had accepted 142 absentee ballots on touch screens or paper that were not contained in sealed envelopes as the law specifies.
Burlison said the board could not ignore or circumvent “tedious and specific” provisions of the law.
The decision gives Franks, 31, an activist who lost by 90 votes, another chance to unseat Hubbard, 62. It also casts doubt on the methods that election authorities across the state use to count absentee votes when they are cast in person.
Burlison wasn’t the only St. Louis circuit judge in recent weeks to rule that the Election Board had broken the law.
In July, Roland began raising 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. He filed a public records request with the board for copies of absentee ballot applications and envelopes.
The board denied the request, as well as a request from the Post-Dispatch for the same documents.
Judge Julian Bush ruled on Aug. 23 that the Election Board defied the state’s open records law when it refused to provide the records. The board still took a day to produce them. When it did, Roland made the discovery about the envelopes.
The records also led to a Post-Dispatch investigation that revealed multiple irregularities.
The new election is scheduled for Sept. 16, but Switzer and Johnson could face an even tighter deadline. Hubbard has appealed Burlison’s decision to the Missouri Court of Appeals. Her attorney, Jane Dueker, is expected to request a court order that would prevent the board from preparing for the election while the appeal is pending.
Under state law, the election commissioners retain their powers and responsibilities until the governor replaces them. Nixon has left other appointees in place after their terms expire, and on Monday, he said that he allowed some officials to continue serving to avoid a time-consuming hiring process as long as the appointee was doing a “good and robust job.”
Asked if he had left these particular election commissioners in place because he thought they were doing a good job, Nixon said: “Well, I mean, it’s not like I get up every day thinking about the … I will say this … the two lawsuits … I mean these are … I’m not here in any way shape or form saying the two people we are replacing … One (Burger) is a retired circuit court judge with a distinguished career … It’s just time for change here.”
The case has highlighted other peculiarities of Missouri’s election law. The state gives elected local county clerks or boards of election commissioners authority over local elections. But whether a municipality has a board or a clerk depends on its population.
In each county that has more than 900,000 residents, the governor appoints commissioners to election boards — a situation that applies to counties in the Kansas City area and to St. Louis and St. Louis County.
In St. Louis, the Board of Election Commissioners is one of the city’s state-mandated “county” offices. Although the city funds the office, four commissioners — two Republican, two Democrat — appointed by the governor oversee it.
The opponents of governor-appointed election boards criticize their structure because they siphon power from the people most directly affected by the board’s decisions: area residents.
But Nixon emphasized that the board was bipartisan and said he did not believe the Election Board’s structure factored into the irregularities.
“I don’t think in this situation that that’s the biggest problem,” Nixon said.