Wednesday, August 24, 2016

Absentee Ballot Info Is Public Record, Judge Rules — But Elections Board Won't Release Records Just Yet

Posted By on Wed, Aug 24, 2016 at 7:00 AM

David Roland has prevailed in his lawsuit against St. Louis Board of Elections. - PHOTO BY SARAH FENSKE
  • PHOTO BY SARAH FENSKE
  • David Roland has prevailed in his lawsuit against St. Louis Board of Elections.

The candidate you vote for is between you and God — but if a person helps you fill out your absentee ballot, that's a public record.

That's according to St. Louis City Circuit Court Judge Julian Bush, who issued a swift ruling yesterday in a lawsuit filed by attorney David Roland against the St. Louis Board of Elections. Judge Bush's decision opens up four years of absentee ballot applications and envelopes in races involving the Hubbard family, a Democratic Party dynasty in St. Louis — and Roland drove to St. Louis this morning from his home in Mexico, Missouri, to begin in inspecting them today.

But just minutes before he was set to arrive at the Board of Elections office, Roland says he heard from the board's attorney. He informed Roland that the board would not be releasing the information after all. Instead, they'd be reevaluating their options. 

"I am incredibly displeased," Roland tells the RFT in an email. "The Board expressly told the judge that they would abide by whatever decision he made and yesterday afternoon they affirmed that initial pledge, making detailed arrangements for me to travel to St. Louis and begin review of the documents this morning at 9 a.m. There is no justification whatsoever for this delay."

He adds, "Although the Board has repeatedly professed to simply be neutral in the dispute regarding the legitimacy of the election results in the 78th District, the Board's actions this morning call that alleged neutrality into serious question."

The board's last-minute delay is a setback for Roland's client, Bruce Franks, a candidate for the Missouri House of Representatives. Also a Democrat, Franks lost his primary challenge to State Rep. Penny Hubbard (D-St. Louis) by just 84 votes.

But even before the election, Roland had raised serious concerns involving Hubbard and her family members, alleging that the percentage of absentee ballots cast in their favor in past elections was "quite literally unbelievable." He'd asked to inspect some of the materials associated with those ballots, which would show the reasons people have given for needing an absentee ballot and the name of any person who helped them fill it out.

The Board of Elections had fired back that such records were not open to the public. But Judge Bush disagreed with that decision in yesterday's ruling, writing,
Defendants point to section 115.493 RSMo, which provides in pertinent part that election authorities shall keep all “processed ballot materials in electronic form and write-in forms” for 22 months, and that they allow no one to inspect them during that time. They assert that the ballot envelopes are “processed ballot materials in write-in form.” The phrase “processed ballot materials in write-in form” is awkward at best and gobbledygook at worse, and it is certainly not self-evident that absentee ballot envelopes are such things.
Roland has also filed a second lawsuit on Franks' behalf, this one an election challenge. That suit is on hold, per Judge Bush's order, under the Secretary of State certifies the election result. After Bush's ruling yesterday, Hubbard's attorneys asked for a change of judge in that case.

The ruling that the ballot information was public record angered many of the Hubbard family's defenders yesterday, including State Rep. Mike Colona (D-St. Louis), who blasted the decision in a lengthy Facebook screed.

Colona wrote,
[T]his lawsuit will do nothing less that chill voter turnout, prompt the republican general assembly to change absentee voter laws to make it harder to vote - and use this case to justify a "yes" vote on voter ID in November. The lawyers for the plaintiff's in this case have just changed state law. If you vote absentee, your application and reason for voting absentee is now public information and anyone can request a copy of your application. They can see why you voted absentee. If your health is an issue, now anyone can know your private health information.

Why did this happen? Since the plaintiff's can't find any evidence of fraud, they want to send investigators out to everyone who asked for an absentee ballot and accuse them of fraudulently voting.
Colona then posted a Google doc of all the voters who'd requested an absentee ballot in the case, intimating that they — not his clients — could face felony charges over their votes.

Says Roland, "He's not interested in the evidence we have or the evidence yet to be uncovered — he's interested in trying to prevent it from coming to light.  Well, if he's representing Ms. Hubbard, that's his job.  It's the court's job to weigh the evidence when it's brought before them. And I suspect Rep. Colona will not like what it shows."

The FBI and the Secretary of State's Office have also been asking questions about the race involving Hubbard and Franks, as the RFT reported last week.

Editor's note: We updated this story at 9:10 a.m. after hearing that the board was not ready to release ballot information after all. That also entailed changing the headline. We'll continue to stay on this story as it develops.

We welcome tips and feedback. Email the author at sarah.fenske@riverfronttimes.com

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