Forth City Institute

Will recent Missouri Sunshine Law ruling cast shadows on voter turnout?

By: Nolan R. Sharkey, Esq.

On September 13, 2016, the Missouri Eastern District Court of Appeals upheld the 22^nd Judicial Circuit ruling which required a special election to be held on September 16, 2016, between the incumbent, Missouri State Representative of the 78^th District, Penny Hubbard and challenger Bruce Franks Jr.[1] The ruling found serious issues regarding the validity in absentee ballots that were submitted in support of Rep. Hubbard. They also found that absentee ballots were public information accessible under the Missouri Sunshine Law. Local legislators and attorneys feared that this court ruling could jeopardize personal voter information and discourage future absentee voting. The concern is that voters who negligently filed for an absentee ballot after not qualifying under Missouri’s stringent absentee voting requirements could be subject to an investigation and, possibly, an indictment. This discussion raised yet are another reason why Missouri legislators should do away with the current archaic absentee voting rules and embrace the universal vote by mail (“UVBM”) practice currently implemented in three states, Oregon, Washington and Colorado. The current Missouri absentee voting rules will likely lead to future legal issues as seen in the 78^th District election and re-vote. After a costly re-vote, special election, Mr. Franks defeated Rep. Hubbard in a landslide victory, 2,234 votes to Rep. Hubbard’s 701 votes.[2] This entire election then re-do election, begs the question: how can Missouri make it easier for its citizens to vote without increasing voter fraud or discouraging absentee voters?

On August 2, 2016, Mr. Franks, commonly recognized for wearing a superhero t-shirts, ran for the 78th Missouri House of Representatives District and fell just 90 votes shy of defeating the incumbent, Rep. Hubbard (D-St. Louis).[3] There was a total of 4,316 votes cast in the 78^th District election. Mr. Franks’ unofficial running mate, Rasheen Aldridge, lost by 52 votes to incumbent Fifth Ward Committeeman Rodney Hubbard, Sr.[4]

The Hubbard family are known locally as a political powerhouse from the Carr Square neighborhood, located just north of Downtown St. Louis.

Before election day, Franks’ and Aldridge’s attorney, Dave Roland, claimed that in past elections, when a member of the Hubbard family was on the ballot, [he or she] would produce “quite literally unbelievable” amounts of absentee turnout.

“[T]he percentage of absentee ballots being cast tends to plummet whenever a Hubbard is not up for election…,” Atty. Roland stated. “My clients are concerned that these statistics indicate widespread abuse of the absentee voting process in St. Louis City, and that this abuse seems systematically to favor members of the Hubbard family.”^{^[5]}

On July 29, 2016, Attorney Roland filed a lawsuit on behalf of his clients against the St. Louis Board of Election Commissioners claiming that the organization’s election office had refused to allow him to inspect the absentee ballot applications from the city for four years prior to his complaint from 2012 to 2016 in direct violation of the Missouri Sunshine Law.[6]

After the election results rolled in, the absentee ballots were once again the Hubbards’ collective savior. When the official results were released two weeks later, Rep. Hubbard brought in 2,203 votes, compared to Mr. Franks’ 2,113.

However, Mr. Franks won 51 percent of the votes cast at polls on Election Day.^{^[7]} Rep. Hubbard received 79 percent of the absentee votes – 414 votes to Franks’ 114 votes.^{^[8]}

Mr. Aldridge’s campaign suffered a similar fate, as he could not overcome the Hubbard’s proven absentee strategy. Mr. Franks, Mr. Aldridge and Atty. Roland decided it was time to determine whether the Hubbard family possesses one of the most efficient absentee turn outs in the city or if there is unsavory politics at play. Missouri has some of the strictest absentee ballot rules in the country. Misusing an absentee ballot could result in an invalid vote.

The St. Louis Post-Dispatch reports that both the absentee ballot application and envelope are marked with the reason a voter could not make it to the polls on Election Day:

Roland said he is confident that the majority of voters will say they were incapacitated. It’s the only one of the six reasons allowed by law that does not require the voter to have his or her signature notarized, swearing that what the voter stated was true. Roland also suspects that some ballots will have a different reason than the one marked on the envelope.[9]

On August 23, 2016, St. Louis City Circuit Court Judge Julian Bush ruled in favor of Atty. Roland’s argument, citing the Missouri Sunshine Law as statutory authority for releasing absentee ballots over the preceding four years.[10] This is the evidence Atty. Roland needs to show – a history of voters who claimed to be incapacitated for many of the past four elections, an implausible excuse for many voters. Another lawsuit filed by Atty. Roland on behalf of Mr. Franks and Mr. Aldridge challenges the election outcome, but is on hold for the foreseeable future. [11]

Backlash quickly occurred after Judge Bush’s ruling. Many feared that this ruling would violate voter privacy rights. State Representative Mike Colona (D-St. Louis) of the 80th District and legal representation for Rep. Hubbard took to Twitter and Facebook:

“[T]his lawsuit will do nothing less that chill voter turnout, prompt the republican general assembly to change absentee voter laws to make it harder to vote – and use this case to justify a ‘yes’ vote on voter ID November. The lawyers for the plaintiffs in this case have just changed state law. If you vote absentee, your application and reason for voting absentee are now public information and anyone can request a copy of your application. They can see why you voted absentee. If your health is an issue, now anyone can know your private health information…. The real crime is whomever loses an election from now on will want a copy of your absentee voter application – so they can send the vote police to come see you to make sure you voted the way you wanted to vote. #chillingeffectonvoting.[12]”

On August, 24, 2016, Chairwoman Joan M. Burger of the St. Louis Election Commission agreed to comply with Judge Bush’s orders after removing some private information contained on the ballot applications and envelopes, such as the last four digits of the voters’ Social Security numbers; whether or not they voted absentee because of religious reasons; or because they were participating in the state’s address confidentiality program, which protects victims of domestic violence, rape, sexual assault and stalking.

This writer has nothing but respect for Rep. Colona as a local attorney and an excellent representative of the South City neighborhoods, but the lame duck representative’s conclusion that the Sunshine Law ruling will affect voter turnout seems unsupported by any fact or study, perhaps an emotional reaction to a courtroom loss. Claiming that this ruling will justify Voter ID implementation looks like nothing more than a straw man fallacy – a fear tactic presented to the general public. The opponents to the court’s ruling fear that typical absentee voters, primarily disabled and elderly voters, will be less likely to vote because they fear that their absentee ballot may become the focus of a voter fraud investigation. If the absentee ballots are properly filled out and legitimate, voters should have no fear of voter fraud or potential criminal investigations.

Rep. Colona vocalized his opposition to Missouri’s Voter ID propositions, which are infamously perceived as presenting unnecessary obstacles for voters.[13] He also opposed the Early Voting measure proposed by Missouri House Republicans in 2014, which only allowed early voting ballots to be cast six business days before the election, ending the Wednesday before an election. In-person ballots would be cast during the regular business hours of local election officials.[14] Many House Democrats viewed this as a feeble attempt to implement an early voting system that would cost the state $10 million, but would have little actual effect on increasing voter turnout for the working classes because the polls would only be open during business hours.[15]

If Missouri Democratic legislators like Rep. Colona want to be serious about protecting absentee voter information and increasing voter turnout, they would need to make some serious efforts to loosen early voting measures. Three states with the most liberal early voting policies are Oregon, Washington and Colorado.^{^[16]} In these three states, all registered voters are sent their ballots generally two weeks before an election, and no ID verification is required.^{^[17]} Voter fraud is prevented by signature comparison verification where the signature on the ballot is compared to the voter’s signature on file with a local election authority. All three states rank in the top one-third of all states for voter turnout,^{^[18]} and reports of voting fraud from those states are minimal.^{^[19]} For example, since 2000, Oregon convicted only nine people of voter fraud.[20] Some report that voting fraud in UVBM states is indistinguishable from those with traditional polling places.[21]

“There is absolutely no doubt in my mind that we see high turnout because of vote-by-mail,” said Kate Brown, Oregon’s former Secretary of state. “It is extremely convenient and accessible; it is secure and cost-efficient.”^{^[22]}

The Washington Monthly affirmed:

“The three states that used UVBM in 2014 had tremendous turnout even though only one of them had a competitive race for either governor or senator. In 2014, Oregon’s active voter turnout rate was 70.9 percent—23 percentage points higher than the national average—despite having no hotly contested top races. Colorado, which had both a close Senate and governor’s race, logged a 71.9 percent ARV rate in its debut UVBM election. Washington State had no U.S. Senate or governor’s race in 2014, but its 54-percent ARV turnout still handily beat the national average. If you’re goal is to boost turnout, voting by mail has proven itself a winner.”[23]

But how can it be cost-efficient to mail a ballot to every voter in the district?

“Universal vote-by-mail can significantly reduce administrative costs by eliminating the logistical nightmare of so many polling locations,” said John Doe, Position X of the National League of Postmasters. “Especially in the many states [Missouri included] that currently experience widespread “no excuse” absentee voting, universal vote-by-mail significantly cuts costs.”[24]

For a red state that frequently proclaims adoration of trimming down government and its associated costs, it seems the citizens would embrace this non-partisan issue that can save not only money, but increase voter turnout and lead to fewer headaches as seen in the 78^th District race. After all, it is rather alarming to think of the legal and administrative money that has been wasted in the 78^th District alone owing to Missouri’s archaic voting policies.

***DISCLAIMER: Mr. Sharkey is a St. Louis City Counselor. In no uncertain terms does the City of St. Louis or City Counselor’s Office endorse these opinions. Sharkey was not involved in any way involving this matter and did not gain any inside information from his work position. The entirety of this article is public knowledge mixed with personal opinion. ***

Citations, End notes and Comments:

[1] http://www.riverfronttimes.com/newsblog/2016/09/13/bruce-franks-jr-beats-back-penny-hubbards-appeal-revote-set-for-friday

[2] http://www.stltoday.com/news/local/govt-and-politics/franks-wins-big-in-re-do-election-for-th-district/article_2e4cee53-10ff-5f16-873b-3912fb4c3703.html

[3] http://www.stltoday.com/news/local/crime-and-courts/st-louis-election-board-to-produce-records-thursday/article_0df43523-349a-5296-add9-b3e29fc32d97.html.

[4] http://www.stlamerican.com/news/political_eye/bruce-franks-jr-calls-for-a-re-vote-in-state/article_81537c7e-5f43-11e6-8af7-0f141b4af582.html

[5] http://www.riverfronttimes.com/newsblog/2016/07/13/challengers-to-hubbard-family-demand-action-after-detailing-extreme-irregularities-in-absentee-ballots

[6] Section 610.011.1, RSMo Supp 2006

^{^[7]} http://www.stltoday.com/news/local/crime-and-courts/unsuccessful-candidate-for-missouri-state-rep-and-his-supporters-seek/article_7739c692-0a71-5b72-84f0-912164bd9579.html

[8] Id.

[9] http://www.stltoday.com/news/local/metro/absentee-ballot-applications-and-their-envelopes-are-public-record-st/article_45d84f7a-1af8-57ab-9ab3-a2d00221323e.html. (Missouri only allows absentee voting for the following reasons: Absentee voters must provide one of the following reasons for voting absentee: (1)Absence on Election Day from the jurisdiction of the election authority in which such voter is registered to vote; (2) Incapacity or confinement due to illness or physical disability, including a person who is primarily responsible for the physical care of a person who is incapacitated or confined due to illness or disability; (3) Religious belief or practice; (4) Employment as an election authority, as a member of an election authority, or by an election authority at a location other than such voter’s polling place; (5) Incarceration, provided all qualifications for voting are retained. (6) Certified participation in the address confidentiality program established under sections 589.660 to 589.681 because of safety concerns. See: https://www.sos.mo.gov/elections/goVoteMissouri/howtovote#Paper)

[10] http://www.riverfronttimes.com/newsblog/2016/08/24/absentee-ballot-info-is-public-record-judge-rules-but-elections-board-wont-release-records-just-yet

[11] http://www.riverfronttimes.com/newsblog/2016/08/24/absentee-ballot-info-is-public-record-judge-rules-but-elections-board-wont-release-records-just-yet

[12] https://www.facebook.com/mike.colona.7?fref=ts. (posted 4:24 P.M. on August 23, 2016)

[13] http://news.stlpublicradio.org/post/missouri-house-passes-bill-put-photo-voter-id-requirement-ballot-constitutional-amendment#stream/0

[14] http://www.newstribune.com/news/news/story/2014/may/14/lawmakers-endorse-missouri-early-voting-measure/554662/

[15] http://news.stlpublicradio.org/post/missouri-house-passes-bill-put-photo-voter-id-requirement-ballot-constitutional-amendment#stream/0

[16] http://washingtonmonthly.com/2016/01/11/why-everyone-should-vote-by-mail/

[17] http://www.ncsl.org/research/elections-and-campaigns/absentee-and-early-voting.aspx

[18] http://247wallst.com/special-report/2016/02/04/voter-turnout-in-each-state

[19]http://www.slate.com/articles/news_and_politics/map_of_the_week/2012/09/voter_id_laws_a_state_by_state_map_reveals_how_much_voter_fraud_there_is_in_the_united_states_almost_none_.html

[20] http://www.csmonitor.com/USA/Elections/2012/1106/Voter-turnout-the-6-states-that-rank-highest-and-why/Oregon

[21] http://washingtonmonthly.com/magazine/janfeb-2016/vote-from-home-save-your-country/