A St. Louis Circuit Judge on Friday tossed out the results of a fiercely contested Aug. 2 Democratic Primary and ordered a new election based exclusively on what may seem like an insignificant detail, the St. Louis Election Board accepted 142 Absentee ballots without envelopes.

But Judge Rex Burlison’s decision details the reasons why those envelopes are required by law and says the Board can’t ignore or circumvent “tedious and specific” provisions.

The decision gives Bruce Franks Jr., a 31-year-old activist who lost by 90 votes, another chance to unseat incumbent State Rep. Penny Hubbard, 62. It also casts doubt on the methods Election Authorities across the State use to count Absentee votes when they are cast in person.

The new Election is scheduled for Sept. 16, but Hubbard’s Attorney, Jane Dueker, said the decision will be appealed.

In court this week, Franks’ Attorney, Dave Roland, pointed to a number of other irregularities as he argued that at least 238 votes should have been rejected by the Election Board. But Burlison addressed only the State laws that provide specific steps for accepting, counting and challenging Absentee votes.

Franks received nearly 53% of votes cast at the polls on the day of the election, but Hubbard won 78.5% of the Absentee ballots, giving her a 90-vote advantage in the final tabulation. The Absentee tally was 416 for Hubbard, 114 for Franks.

Burlison blamed the Election Board, not Hubbard or her supporters, for the need to have a new election. “No credible evidence was presented from which this Court could find that any voter fraudulently cast a vote in this case,” Burlison said. “Any error or irregularity that this Court finds herein, is solely the responsibility of the City of St. Louis Board of Election Commissioners.”

Since 2006, the St. Louis Election Board has been allowing Absentee voters who vote in person at the Election Board office to use touchscreens. Other jurisdictions, such as St. Louis County, do the same. But some Election authorities only accept Absentee votes in envelopes. It’s not clear if Burlison’s ruling will affect other elections.

Franks, from the Benton Park West neighborhood, ran against incumbent Hubbard, of Carr Square, with the intent of shaking up the established Democratic Party. The Hubbard family has long been entrenched in City politics. Hubbard’s husband, Rodney, is the 5th Ward Committeeman; their daughter, Tammika, is 5th Ward Alderman.

Roland raised concerns weeks before the Aug. 2 Primary about the Hubbards’ use of Absentee votes to win election, noting that there was a spike in Absentee voting when a Hubbard ran for office. In a 2011 Special election, more than 60% of Tammika Hubbard’s votes were Absentee. Roland filed a public records requests seeking copies of Absentee ballot applications and envelopes in July, but the Election Board argued those were closed records and refused to release them. Roland sued the Board for the documents.

After Franks lost the election, Roland filed another lawsuit seeking to have the election results overturned. Of the 4,316 votes cast in the race, 530 were Absentee.

Last week, Circuit Judge Julian Bush ruled the Board had violated the law by keeping the records, which were also requested by the Post-Dispatch, secret. The Board waited another day before producing the documents.

The records led to an ongoing Post-Dispatch investigation that has found numerous irregularities. Many voters said they were duped into filling out Absentee ballots and were told to mark that they were incapacitated when they were not. Two former Election Board workers said Penny Hubbard’s husband brought stacks of Absentee ballots into Board headquarters downtown, a violation of State law. Two voters have said individuals who said they were with the Hubbard campaign filled out ballots for them.
The records also revealed that 142 ballots cast at the Election Board office downtown did not have envelopes.

In the trial that began Wednesday, Roland focused on the validity of the in-person votes cast without envelopes. The law says all Absentee ballots must be received in a sealed envelope. The envelope provides the signature of the voter, a place to mark one of the six reasons the voter is voting absentee and a place to notarize the ballot, which must be done in all cases except when the voter claims “incapacity” as a reason for voting absentee.

Dueker argued before the Judge that the envelope issue was a technicality that shouldn’t be used to disenfranchise voters.

Roland also noted other discrepancies in the Absentee ballot processing, such as the Election Board’s acceptance of ballots in envelopes that should have been notarized. Bettie Williams, the Election Board’s Deputy Republican Director, attributed some of those mistakes to “human error.”

“The Court is firmly convinced that these irregularities affected the outcome of the election. These irregularities were more than petty procedural infirmities but abuses of the election law which cannot be ignored.” Burlison added: “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 also said the Election Board had violated Missouri law.

“We could not be happier for the people of the 78th District,” Roland said Friday.

But Dueker criticized the decision saying, “The will of the people was thrown out based on a legal technicality having absolutely nothing to do with voters.”

In a text message, Dueker said if the Missouri Court of Appeals does not overturn Burlison’s decision, then a much smaller number of voters will determine the outcome of the election. “That is voter suppression,” Dueker said.

A statement from Secretary of State Jason Kander on Friday said his office is ready to assist with the new election and will continue to review the situation and make its findings public once they are complete. “That aside, clearly in this situation, the St. Louis City Board of Election Commissioners did not comply with state law,” Kander said.

A spokesman could not say how many Election authorities in the State use similar procedures.

Franks’ lawsuit may be not be the only challenge for the Hubbards.

In St. Louis’ 5th Ward, Rodney Hubbard Sr. defeated Rasheen Aldridge, another young activist. Like Franks, Aldridge won the majority of votes on Election Day, but Rodney Hubbard Sr. carried the absentee vote: 231-96.

Last month, during the press conference when Franks announced his lawsuit, Aldridge was considering one of his own.











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