Candidate alleges irregularities in Missouri Senate election

Daily Record and the Kansas City Daily News-Press, Aug 29, 2008 by Kelly Wiese

Another losing candidate is challenging the defeat in court, and this time alleges there were so many problems in St. Louis on Election Day that a judge should order the entire election to be redone.

Rep. Rodney Hubbard, D-St. Louis, lost the primary for a state Senate seat by 101 votes, or 0.8 percent, out of more than 12,000 cast, to fellow Rep. Robin Wright-Jones.

Among the problems Hubbard alleges are that the computer voting terminals malfunctioned, not displaying Hubbard's name at times; that some absentee and provisional ballots were improperly rejected; that election judges voted for people and did not complete information on ballots properly; that Hubbard supporters were prevented from sharing information with voters near polling sites while Wright-Jones' supporters were allowed; and that voters' names appeared multiple times on the rolls.

Also, he claims, many people who requested absentee ballots never received them, and some absentee ballots were cast but not shown as received by the election board. According to Hubbard, 1,879 absentee ballots were requested, but only 1,525 were turned back in.

"The breadth and scope of the irregularities in connection with the election are of such a magnitude as to call into question the validity of the election," alleges the suit, filed by Gilbert Sison of Rosenblum, Schwartz, Rogers & Glass. "These circumstances warrant a new election."

Scott Leiendecker, Republican director of the St. Louis Board of Election Commissioners, declined to comment on specific claims in the suit, but said the election went well from his perspective.

"Everything went pretty smooth. We feel confident in the results," he said. "We had very few, if any, problems out in the field."

But Leiendecker has his own questions about the absentee ballots, and said the election board is conducting an internal investigation of the matter. As an example, he said election results from one precinct within a ward showed 209 absentee votes for Hubbard, and just 13 for Wright-Jones. Fewer people cast ballots in person than by absentee for that area, he said.

Short of redoing the election, the suit at a minimum asks the court to require the secretary of state to review and potentially count all rejected absentee and provisional ballots, and for the court to require all ballots called into question by the suit to be recounted.

A hearing in Hubbard's case is set for this afternoon in Circuit Judge Edward Sweeney's court.

This is not the first legal challenge this year involving the 5th Senate District race. Before the primary, Wright-Jones challenged another contender, Connie Johnson, as not being eligible to run. The courts eventually agreed that Johnson did not live in the district for the time required by law to seek the seat. But that legal battle forced the St. Louis election board to hold off on printing ballots, including for absentee use, until a ruling came down. Still, election officials said they had absentee ballots ready on time.

Hubbard and candidates in two other races also have sought recounts through the secretary of state's office. Recounts are automatically granted if requested in races where the margin of victory is less than 1 percent.

One of them, Rep. Margaret Donnelly, another St. Louis Democrat, also filed a court challenge as well. The attorney general candidate seeks to have absentee and provisional ballots that were rejected as invalid votes by local election officials reviewed and potentially counted toward the total.

Hubbard's election challenge covers a much smaller area as his district includes just part of St. Louis City, whereas Donnelly was on a statewide ballot.

But recount requests can take significant time and resources. State law provides that when a recount is conducted, both candidates are allowed to have an attorney present in each election jurisdiction, which for a statewide contest means the 114 counties in Missouri plus St. Louis city and Kansas City.

That could mean work for more than 200 lawyers for the attorney general's race alone.

But Mark "Thor" Hearne, a Republican election law attorney, said it's not necessary to have a practicing lawyer at each site, nor are there that many to go around in Missouri.

"Election law's not a field that's well populated with lawyers," he said. "It's a seasonal practice."

Hearne, who practices at Lathrop & Gage in St. Louis, has been involved with recounts before and was the national counsel for President Bush's 2004 campaign. Hearne's firm is representing Donnelly through its Kansas City office, but Hearne is not involved with that case.

Ideally, he said, having an attorney present for each recount is the best course of action, but especially if several counties conduct them simultaneously, that may not work. What's most important, he said, is that whatever representative is on hand for a candidate can easily reach an election law attorney as the recount is conducted. For the most part, the recount itself does not amount to a legal proceeding, he said, though legal issues can arise.