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On the Trail, an occasional column by St. Louis Public Radio political reporter Jason Rosenbaum, takes an analytical look at politics and policy across Missouri.

On the Trail: As Franks-Hubbard saga continues, debate emerges over releasing absentee applications

Bruce Franks talks to Mary Wheeler-Jones, the Democratic director of elections for St. Louis, on August 17, 2016.
File photo by Rachel Lippmann | St. Louis Public Radio
Bruce Franks talks to Mary Wheeler-Jones, the Democratic director of elections for St. Louis, on August 17, 2016.

The prolonged 78th House District primary between state Rep. Penny Hubbard and Bruce Franks may prove that one state representative race can shake up the Missouri political system.

But there’s disagreement if that "system shaking" is a positive or negative development for Missouri politics.

If you’re just tuning into the Franks-Hubbard situation, here’s where things stand: Franks is legally challenging his 90-vote defeat to Hubbard, a St. Louis Democrat who has served three terms in the Missouri House.He’s alleged in the lawsuit that 280 people who cast absentee ballots didn’t qualify to apply for them. (That’s important, since Hubbard’s big edge in absentee ballot votes was a difference-maker.)

Whether that legal missive is successful remains to be seen, since St. Louis Circuit Judge Julian Bush won’t even consider that challenge until the state certifies the August primary results. But what caught the attention of a lot of people is Bush’s ruling that Franks’ attorney, Dave Roland, could obtain copies of absentee ballot applications. That could possibly make it easier for Franks to prove his case for a new election. 

The St. Louis Board of Election Commissioners
Credit Jason Rosenbaum I St. Louis Public Radio
The St. Louis Board of Election Commissioners

“The fact of the matter is we’ve got, just in Penny Hubbard’s neighborhood, several dozen people under the age of 30 who were casting absentee ballots. And that’s a concentration of those types of voters that’s not seen anywhere else in the entire city,” said Roland on Wednesday, adding that he wouldn’t be questioning people who are over the age of 65 about why they cast absentee ballots. “Well, we want to know – what was their justification for casting an absentee ballot? And was that justification legitimate? So there are very definitely people that we will be asking ‘was it legitimate what you said about why you needed to cast an absentee ballot?’”

St. Louis Board of Elections Commissioner Joan Burger said that several people, including Roland, spent Thursday looking through and making copies of unredacted absentee ballot applications. She said both Roland and two St. Louis Post-Dispatch reporters entered into an agreement that the last four digits of the Social Security number on the applications "will not be released to the public in any way.” (Roland told St. Louis Public Radio on Wednesday that he would be happy to enter into that type of arrangement.)

The big reason the release of the applications went forward this week is because the city election board declined to appeal Bush’s decision. Burger, a former judge, said she didn’t think an appeal would be successful.

“We decided not to appeal after talking with our lawyers,” Burger said. “We felt two things. One, I felt that Judge Bush’s order was substantially correct. I had some issues with it. But I thought it was substantially correct. And two, I thought it was in the interest of the citizens of St. Louis to have this matter resolved.

“He looked at the Sunshine Law and the liberal interpretation required and compared it to what we believed were confidential records based upon our history, our practice and actually the two sections of the statute,” she added. “We felt they were confidential. Judge Bush looked at the statute and did not agree and did not think our statute under [state law] was clear enough to require them to be kept confidential. That’s my interpretation.”

Pandora’s box?

It remains to be seen whether the release of the absentee ballot applications will help Franks prevail in his election challenge. But some Hubbard allies (and a few Hubbard adversaries) have wondered aloud if Bush’s decision could have profoundly negative consequences for elections. 

Mike Colona May 2016
Credit Jason Rosenbaum | St. Louis Public Radio
State Rep. Mike Colona, D-St. Louis, is one of the lawyers that's representing state Rep. Penny Hubbard, D-St. Louis, in the election challenge case.

State Rep. Mike Colona is representing Hubbard in the election challenge case (not the application document case). Among other things, the St. Louis Democrat criticized how Bush’s decision will publicly release information on an absentee ballot application. These applications contain anapplicant’s address, which political party ballot the person took in a primary, and the reason he or she couldn’t go to the polls on Election Day. Those reasons include being out of town, being incapacitated due to illness or disability, a religious belief or practice, or being part of an address confidentiality program.

Additionally, Colona foresees a scenario in close elections where “you now are going to have political operatives coming in, grabbing those absentee applications, and sending investigators out to talk to people.” And he said if voters provide a rationale that's different from what's on their absentee ballot application, they could open themselves up to felony charges.

“You put that all together, and the very least you’re going to have a chill on voter turnout,” Colona said. “People are going to scratch their head and say ‘you know what? I had somebody come and talk to me last time about my absentee ballot and questioned me why I did it. I’m not going to put myself through this again. I don’t want to expose myself to a problem. If I’m out of town, the heck with it I’m not going to vote.’ That’s at the very least what’s going to happen.”

Colona said there are also implications if Franks is successful at prompting a new election. “Somebody’s already been interviewed and asked why they did an absentee ballot and put through the mill,” he said. “That has the potential to discourage them from voting in the next election that’s called.”

When asked about the contention from Colona and others that his legal strategy could have negative ramifications, Roland said: “I don’t think that should be a concern at all.” He added that Franks’ goal is “to make sure that every registered voter of the 78th District has their voice heard in a fair manner, and has their vote counted in a fair manner.

“I am perfectly willing, matter of fact I probably would go out of my way, to try to make it happen to allow people to testify anonymously about their decision to vote using an absentee ballot,” Roland said. “We’ve suspected all along that many of the people using absentee ballots did not realize that it was unlawful for them to do so. They are not subject to any criminal penalties if they didn’t know what they were doing was wrong.”

(Colona objected to that contention, adding that it’s up to a prosecutor, not Roland, to decide if someone is going to be charged with absentee ballot fraud. Roland says the statute in question only deals with "knowing" violations of the law. "If Mr. Colona would like to name which prosecutors in the city of St. Louis he believes would prosecute a voter who had simply been misled about the lawfulness of using absentee ballots, I'll take his alleged concerns more seriously," he added.)

Roland added that he explicitly said “all along we don’t want any voter to face any trouble for having accidently or unintentionally unlawfully casting” an absentee ballot.

“We simply want to make sure that there’s a fair election that takes place,” Roland said. “And to the extent that our investigation uncovers that were specific people who were misleading people into believing that they were lawfully permitted to vote absentee, we do think that those people need to be punished. But we’ve made clear all along that we want to protect the ordinary voters that didn’t realize that what they were doing was illegal.”

Legislative fix?

For her part, Burger said she understands the concerns of people like Colona.

“And in fact, on July 12, David Roland wrote a letter to us through the Board of Elections asking us to do exactly that – to go and inquire to each voter who offered an absentee ballot as to why they were incapacitated or why they were going to be out of town or what religious reasons were they stating,” Burger said. “And we declined to do that.”

And if people are upset about Bush’s decision, there’s a pretty easy solution: Convince the Missouri General Assembly to pass law making absentee ballot applications closed records. Burger said she expects the Franks-Hubbard situation will compel Missouri lawmakers to act next year.

“Judge Bush is very fine jurist,” Burger said. “I mean, I was on the bench with him. I respect his decision and I thought he was right. … And also, I thought it was in the best interest of everyone that this process be completed.”

On the Trail, a weekly column, weaves together some of the intriguing threads from the world of Missouri politics.

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