Pushing the Envelope: St. Louis Dispute Over Absentee Voting

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[Image via theinspirationroom]

NOTE: This post has been corrected to reflect that the dispute is underway in St. Louis city, not the County. My apologies for the error.

A close primary in St. Louis has generated a dispute that centers on an unusual subject: envelopes – or rather the lack of them. STLToday has more:

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.

This dispute is primarily a political one, focused on a close race between two candidates:

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 …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.

That narrow loss led Franks to seek copies of absentee ballot envelopes from the city – a request that was refused until a court stepped in:

Franks and [attorney Dave] 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 a major focus of the case now is what to do about absentee ballots that don’t have envelopes – because they were cast in person:

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.

Other counties have said they do not allow in-person absentee ballots:

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.

At issue is the degree to which campaigns have the opportunity to witness and/or challenge absentee ballots:

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.

Beyond the need to determine the outcome of this specific primary race, this dispute is interesting because it highlights both the degree to which statutes structure the electoral process and the challenges that arise when technological developments and/or evolving practice outstrip the letter of the law. Not mentioned in the article, however, are the processes the city uses to allow voters to cast absentee ballot in-person. If they are truly unsupervised when doing so, that’s a problem; but more likely, voters casting such ballots are being asked to check-in and verify their registrations before being allowed to cast a ballot. If that’s indeed the case, then those votes are getting the same kind of protection that an envelope would provide. Either way, the state – preferably through the legislature – should clarify whether in-person absentee ballots are allowed and if so what procedures they should follow. The alternative, in the absence of such clarity, is this kind of “letter versus spirit” legal debate that has arisen in this case and puts outcomes in doubt.

I’m curious to see what the court does here – and what it might mean for Missouri counties in the run-up to November. Stay tuned …

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