U.S. Rep. Wm. Lacy Clay called for U.S. Attorney General Loretta Lynch to “immediately intervene in court and election proceedings” in Missouri House District 78 in a letter dated Friday, September 9, but no immediate relief came from the nation’s capital.
Instead, the Missouri Court of Appeals proceeded, undisturbed, to rule on an appeal to a lower court’s order for a special election in the district, after challenger Bruce Franks Jr. objected to incumbent Penny Hubbard’s use of absentee ballots in the August 2 Democratic primary. On Tuesday, September 13, the appellate court upheld the lower court’s ruling.
That means, unless the Missouri Supreme Court is asked to intervene and does so – or Clay’s Hail Mary to Lynch pays off belatedly – voters in House District 78 will head to the polls on Friday, September 16 to pick their Democratic nominee for state representative. Given that the Republican nominee, Erik Shelquist, received nearly 2,000 votes fewer than Franks or Hubbard on August 2, the winner of the special election on September 16 will be the next state representative.
The appeals court agreed with Circuit Judge Rex Burlison that the St. Louis Board of Election Commissioners improperly accepted at least 142 absentee ballots on August 2, thus improperly providing Hubbard with the margin of victory. Franks beat the incumbent at the polls on election day, but a massive absentee advantage gave Hubbard a 90-vote victory.
“Because the statutes regarding the protocol for absentee voting are not ambiguous and are mandatory under the court’s precedent, we affirm the decision of the trial court,” wrote Judge Roy L. Richter in an appeals opinion joined by judges Phillip M. Hess and Colleen Dolan.
Absentee voting – the ace in the hole for various candidates named Hubbard for many election cycles, and for other 5th Ward power players before them – is already underway and continues through Thursday, September 15. In addition to the election board’s regular absentee voting hours of 8 a.m. to 5 p.m. Monday through Friday, absentee voting for the special election will be extended to 7 p.m. on Tuesday, September 13 and Wednesday, September 14.
Polls will be open on election day – Friday, September 16 – from 6 a.m. to 7 p.m. Any city resident who has any questions about their voter registration status should contact the election board at 314-622-4336.
The lower court placed the blame squarely on election officials, rather than the Hubbard campaign or the people who voted for her via absentee ballot. But that was enough to throw out the election. “Casting an absentee ballot is not a right but a privilege,” the appeals court ruled. “A failure to follow the specific requirements of absentee voting laws is enough to find legal fraud” and disqualify the election results.
As St. Louis Public Radio noted, the appellate opinion echoed the points Dave Roland, Franks’ attorney, emphasized on Monday in urging the judges to uphold a century of court precedent.
“In several of these cases, the court specifically addressed the question of, ‘What if it wasn’t the voter who made the mistake? What if the mistake was made by the election authority?'” Roland told the judges. “And in each of those instances, the court has said it does not matter. If the election authority makes the mistake, the law has still been violated. And each of these cases, it says compliance with the absentee voting statutes is mandatory.”
The appeals court also rejected the argument made by Hubbard’s attorney Jane Dueker (and by Clay in his letter to Lynch) that a new election would disenfranchise voters. “Ordering a special election to replace the results of the original, improperly conducted election does not prevent qualified voters from casting a vote,” Richter wrote in the opinion.
“This is one of the rare cases in which the party that lost the trial actually made their position worse by appealing,” Roland said in a written statement reacting to the appellate ruling. “The Court of Appeals emphatically rejected every argument Hubbard’s attorney put forward and reaffirmed that, because the absentee ballot process is a special privilege that is also prone to abuse, it is critical that voters and election officials strictly adhere to the statutes governing the use of those ballots.”
Franks swung back at Clay on Sunday, September 11 in his own letter to Lynch, which came with attachments detailing some of the irregular – and, possibly, criminal – manipulations of the absentee voting process by the Hubbard campaign.
“Rep. Clay is attempting to manipulate the federal government to politically attack his own constituent, me,” Franks wrote to the attorney general. Franks wrote that Clay “has ignored countless pleas for help in the 5th Ward and 78th District for years” because he “is more interested in protecting his political friends in the Hubbard family than the people of his own district.”
Franks then spoke up for his bona fides in encouraging, rather than discouraging, voter participation.
“In the past year, I have registered over 2,500 new voters in the St. Louis area, increased voter turnout by over 900 voters in the 78th District, and energized many voters of all colors, ages, and creeds to get involved in the political process,” Franks wrote to Lynch.
It was not only the U.S. attorney general whom Clay tried to leverage for Hubbard against Franks. Clay’s former chief of staff Darryl Piggee distributed a press release early on Saturday, September 10, declaring a press conference later that day by the St. Louis Clergy Coalition denouncing Franks and the special election. However, neither the St. Louis Clergy Coalition nor Clay attended the press event. Rev. Charles Brown, Clergy Coalition president, was the only member in attendance.
Franks showed up with state Rep. Michael Butler (D-79), who has endorsed him.
“We arrived to respectfully converse with clergy leaders on our perspective of the voter disenfranchisement and intimidation going on in the 78th District,” Butler told The American. He said Brown was “very open” to dialogue with them. “He instructed us to present to him the complaints of citizens about any voter irregularities,” Butler said. “We plan to present him with many written affidavits that we have already collected.”
Piggee, Clay’s former chief of staff, is now an attorney with Stone, Leyton & Gershman, the Clayton firm that represents NorthSide Regeneration, the massive North St. Louis redevelopment project led by Paul McKee Jr. The Carr Square Tenant Corp., which is controlled by Rodney Hubbard (Penny’s husband), owns a 2.5 percent stake of NorthSide Regeneration. Rodney and Penny Hubbard’s daughter, Tameka Hubbard, is the 5th Ward alderwoman who has sponsored the enabling legislation for the NorthSide project at the St. Louis Board of Aldermen. Tameka Hubbard – with or without a powerful absentee voter program – will stand for reelection in March.
