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Judge orders new election between Carlson and Newman

Thi article first appeared in the St. Louis Beacon, Aug. 24, 2012 - A St. Louis County judge ordered a new election between state Reps. Stacey Newman and Susan Carlson, prompting another battle for the St. Louis County-based 87th state House District.

St. Louis County Circuit Judge Michael Jamison told attorneys representing both lawmakers that Newman, D-Richmond Heights, and Carlson, D-University City, will have to square off in a new election on Sept. 24.

Initial results of the Aug. 7 Democratic primary showed that Newman had won the election by a single vote, but the St. Louis County Board of Election Commissioners found irregularities soon after the results were announced.

The mistakes occurred during the Aug. 7 primary at the polling place in Mount Calvary Lutheran Church in Brentwood, where poll workers accidentally handed voters ballots with the 83rd District race between James Trout and Gina Mitten. During the hearing, Joe Goeke – the Republican director for the St. Louis County Board of Elections who was fired this week – revealed that 100 voters in the 83rd District received ballots to vote in the 87th District, while two 87th District residents received ballots for the 83rd District.

Carlson and her attorneys have said errors may have occurred in other polling places as well.

Jamison said from the bench that was enough to justify a new election, especially since a Missouri statuteallows an election authority “if convinced that errors of omission or commission” occurred because “of the election authority, election judges, or any election personnel” to “petition the circuit court for a recount or a new election.” 

The statute goes on to say that the “court is authorized to order a new election if the evidence provided demonstrates that the irregularities were sufficient to cast doubt on the outcome of the election.”

“Based on what this court has heard, there certainly is reason to believe that the election authority in this case is and was convinced that an error of omission or commission occurred,” Jamison said. “The court will exercise its discretion and will order a new election pursuant to [state statute].”

Carlson and Newman battle in court

Newman and Carlson were technically “defendants” against the St. Louis County Board of Elections. But attorneys representing the board and Carlson were in agreement that a new election was needed, while lawyers for Newman argued against such a move.

"We are seeking an order from this court that we have a new election to determine what the outcome should be," said Darold Crotzer, an attorney representing the St. Louis County Board of Election Commissioners. 

After lengthy testimony from Goeke and Rita Days, St. Louis County’s Democratic election director, attorneys for the two candidates provided closing summations of their arguments. Gerry Greiman – an attorney who is also Carlson’s husband – said not ordering a new election “in egregious circumstances would disenfranchise 3,645 voters.”

“[The Missouri Legislature] has provided, in certain circumstances, for a new election,” Greiman said. “What are those circumstances? It’s when the election authority is convinced that there were errors of omission or commission. There’s no question about that. I think one thing that emerges clearly from this trial is that the election authority is certain that improper ballots were handed out. How can one not say there isn’t doubt cast on the outcome of this election?”

Greiman also said that the Missouri Supreme Court has ruled that if “there are ballots in question and the number of them is greater than the margin of the victory, you have doubts about the outcome of the election.”

“Now here, the margin of the improper ballots is a 100 times the margin of this election,” Grieman said. “If there was ever a case in which a new election was warranted, this is it.”

Dan Bruntrager, an attorney representing Newman, said that the election authority failed to produce evidence that the irregularities would have changed the outcome of the election. He also argued that a new election would present logistical problems for absentee balloting, military voting and voting for disabled people.

“This court can’t fashion any new election that would be fair here, especially when considering the time lines that were mentioned,” Bruntrager said. “I don’t know how this election could even be conducted, when taking into consideration all of the other voters such as the disabled, the military voters that are overseas, the absentee voters. There’s simply no way that can be done.”

Bruntrager also said a new election would conceivably allow somebody who voted in another party’s primary on Aug. 7 to vote again on Sept. 24 for either Carlson or Newman. 

“You’re going to get a totally different election if you just have a do-over," Bruntrager said. "And that’s why the statute says you just can’t have a do-over. That’s why it should be used sparingly. And that’s why not only should it be used sparingly, but it is a difficult burden you must meet to have something like having a new election.”

There was also disagreement during the trial about whether the election was actually certified.

The board announced earlier this month that it had decided not to certify Carlson and Newman’s election, citing the irregularities. But Newman’s attorneys produced documentation showing that the board had sent Secretary of State Robin Carnahan results from the 87th District election without any disclaimers about its lack of certification.

Newman said that’s important because it would contradict the board’s assertion that a new election is required.  

“[The statutes] says the judge has the discretion to call a new election if there are the doubt that there were errors,” Newman said. “That is totally in conflict with the documents that were sent to the secretary of state that they were certifying all races and it being true and accurate.”

But Days testified during the trial that the board had not taken any votes to certify the 87th District election. And Greiman contended Newman’s attorneys were “trying to muddy the waters.”

“The statute that the election board filed this case under isn’t tied to whether any numbers have been certified or not,” Greiman said. “Even if the numbers had been certified, that had no impact on the propriety of this case going forward.” 

Newman ponders appeal

Newman said her attorneys would decide by Monday whether to appeal Jamison’s ruling, adding “you shouldn’t be able to pick out one statute if it violates others.” She said she was especially concerned about the logistical challenges of organizing a new election.

“Elections should not be held if there’s going to be disenfranchisement of voters,” Newman said. “When you’re talking about an egregious error by the Board of Elections, nobody else should be penalized.”

Greiman said he wouldn’t be surprised if Newman went forward with an appeal, but added a new election is the best option in this situation. 

“Certainly a special election is awkward for everybody, but under the circumstances we see it as the only way to fix the acknowledged errors,” Greiman said.

The 87th District encompasses parts of University City, Clayton, Ladue, Richmond Heights and Brentwood. No Republicans filed for the seat, so the winner of the battle between the two legislators will represent the area in Jefferson City next year.

Jason is the politics correspondent for St. Louis Public Radio.