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Judge orders new election in St. Louis state House race

Bruce Franks in court on Sept. 1, 2016.
Jason Rosenbaum | St. Louis Public Radio

Updated at 6:45 p.m. with comment from Dave Roland. - A St. Louis judge has ordered a re-do in a state House race marred by allegations of problems with absentee ballots.

Judge Rex Burlison set the new Democratic primary in the 78th House District for Sept. 16, the earliest date allowed by state law. The 78th covers a swath of eastern St. Louis, from just north of downtown to near the Anheuser-Busch brewery.

Though Burlison found no evidence that any of the 4,300 votes cast in the Aug. 2 primary between incumbent Penny Hubbard and challenger Bruce Franks were fraudulent, he ruled that the St. Louis Board of Election Commissioners violated state law when it allowed 142 people to cast absentee ballots in person at the elections board headquarters without using the required envelopes.

That more than wipes out Hubbard's 90-vote margin of victory, which came solely on absentee ballots.

Franks's election challenge lawsuit claimed, and a St. Louis Post-Dispatch investigation detailed, potentially serious problems with the way absentee ballots were handled, including claims that people from the Hubbard campaign pressured people to use absentee ballots even if they weren’t eligible. But the two-day trial eventually focused on much more technical issues around the envelopes used to submit the absentee ballots, as did Burlison's final ruling.

"Judge Burlison's ruling really didn't get to the issue about the individual abuses of the absentee ballot process that we had raised from the outset," said David Roland, Franks' attorney. "But I think there has been so much public interest about the abuses of the absentee ballot process that we didn't need the judge's order to focus on that in order to see a difference made in how that is addressed and handled going forward."

Hubbard's attorney, Jane Dueker, said Burlison's ruling would be appealed.

"And I think the case law reveals that when there are errors or issues involving statutory compliance that are solely at the fault of the elections board and there’s no evidence of fraud that you can’t throw out the will of the people," she said.


Mary Wheeler-Jones, the Democratic director of elections in St. Louis, said her office has already begun to calculate the number of poll workers and machines it might need for the race. But she said the election board cannot start preparing ballots until there is a final ruling in the case.

Elections cases must be handled on an expedited schedule. But even still, the timing is tight.  By state law, the special election in the 78th has to be completed by Sept. 27, which is the last day election authorities can submit the names of candidates to the secretary of state. The absentee balloting process for the general election begins that same day.

Ongoing investigations

The circuit attorney’s office is reviewing allegations around the Hubbard-Franks race, but did not confirm claims made during the trial that the investigation has been turned over to a grand jury. The Election Integrity Unit at the Missouri Secretary of State’s office is also investigating two claims.

Follow Rachel Lippmann on Twitter: @rlippmann

Rachel is the justice correspondent at St. Louis Public Radio.