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Tuesday, November 24, 2020

How St. Louis Overturned an Election — and Why Trump Can't

Posted By on Tue, Nov 24, 2020 at 10:42 AM

click to enlarge Police drop off a box for election workers outside the St. Louis Board of Election on November 3, 2020. - DANNY WICENTOWSKI
  • Police drop off a box for election workers outside the St. Louis Board of Election on November 3, 2020.

When attorney Dave Roland reads the latest news on ballot fraud conspiracies in the 2020 election, his mind wanders back to 2016. He thinks of a third-floor office at the St. Louis Board of Elections, and of a moment that made him one of the small number of people who have ever pulled off that toughest of all election tricks — overturning the result — which continues to elude the legal team of President Donald Trump.

It was in September 2016 that Roland’s then-client, activist-turned-candidate Bruce Franks, beat Peggy Hubbard in a do-over of their primary race for Missouri House District 78, a contest that Hubbard had won in the first round by 90 votes.

In the second round, however, Franks won. The victory didn’t just validate his insurgent campaign over a longstanding political dynasty, but it did so on a rollercoaster of revelations that appeared to describe a machine of absentee voter fraud at work in St. Louis.

Four years later, the ups and downs of the Franks-Hubbard drama are echoed in the legal battles waged by the Trump campaign in states like Wisconsin, Michigan and Pennsylvania. The overturned 2016 St. Louis election has also entered conservative annals of proven voter fraud: It is featured in the Heritage Foundation’s Election Fraud Database and in the pages of a legal brief filed earlier this month by Missouri Attorney General Eric Schmitt, in which the AG argued that Pennsylvania should throw out mail-in ballots that arrived within three days of Election Day bearing smudged or missing postmarks.

Roland is no stranger to the importance of proper envelope usage. But in an interview with Riverfront Times, the attorney says that while he sees some merit to the tactics employed by Trump’s legal team, his own experience in disrupting St. Louis’ 2016 primary bodes poorly for their chances of pulling off a similar reversal.

“The kind of concerted effort that it would take to intentionally flood an election with unlawful ballots, to favor one specific candidate, you can do that on a small scale and be successful,” he says. “You can engineer a campaign of fraud.”

But, he adds, “When you engage in fraud like this, you leave evidence.”

Attorney Dave Roland. - SARAH FENSKE
  • Attorney Dave Roland.

For Roland, the funny thing about overturning the 2016 election for the 78th House District was that he didn’t need evidence of fraud to do it. That’s what happened in that third floor office in the Board of Elections: It was late August 2016, and with time running out to mount an effective challenge before the general election, a St. Louis judge had allowed Roland to review the records of the just-completed primary election.

Roland sets the scene: On the judge’s order, he and two reporters from the St. Louis Post-Dispatch — the newspaper had similarly sued for access to the ballot records — spent three days pouring over applications for absentee ballots and the associated paperwork. As Roland tells it, he noticed that around 115 absentee ballots cast during the election were missing the mail-in envelopes.

Roland remembers getting the attention of an election worker overseeing their review of records:

“We were missing 100, 115 envelopes, what’s going on here?” he says. "And one of the election workers said, ‘Oh, we didn’t put those in envelopes, we just tabulated them straight away, we put them straight into the ballot box.’”

The answer stunned the attorney. What the worker was suggesting was illegal. Without the envelopes, there was no way to tie the ballot to the associated envelope and absentee application materials, which, under Missouri law, must be available so that a campaign can have the opportunity to challenge them.

“I remember she said this, and I was like, ‘Holy crap!” Roland says. “I looked at [Post-Dispatch reporter] Stephen Deere, he was sitting right next to me, and he said to me, ‘Is that the ballgame?’ And I said, ‘It may well be.’”

Roland's reaction turned out to be right. At the bottom of the ninth, he'd just discovered his home run hitter.

“I remember that exchange really distinctly,” Roland continues. “Because that was the moment when I realized that we had gone from a really, really long shot of getting the election overturned to realizing that if the judge applies the law properly, we win the contest and get the new vote.”

That was exactly what happened. Days later, a St. Louis judge ruled that the number of envelope-less ballots, which exceeded the margin of victory, “cast doubt on the validity of the initial election.”

Bruce Franks became a Missouri House representative after winning a do-over election. - STEVE TRUESDELL
  • Bruce Franks became a Missouri House representative after winning a do-over election.

On September 16, 2016, Bruce Franks faced Penny Hubbard for a second time. Just like the August 2 primary, Franks won the in-person vote on Election Day. But this time, there was no lopsided glut of absentee ballots for Hubbard. Franks won the special election in a landslide.

If transplanted to the national scale, what happened to Bruce Franks in 2016 is what Trump’s legal team dreams of in 2020. Indeed, in retrospect, the main beats of the 2016 local election drama bear many of the marks of a 2020 Rudy Giuliani press conference, complete with allegations of absentee mail-in ballots being dumped for one candidate, a conspiracy involving election workers, and calls for additional audits to reveal even more fraud behind the results.

There are further similarities. Like Trump and his supporters, Roland had been raising alarm about potential absentee ballot fraud long before the 2016 election; Roland had alleged “massive, systematic violation of the state’s absentee ballot statutes” going back more than a dozen election contests involving members of the Hubbard political dynasty.

Roland had started with sweeping, conspiratorial claims. Today, he concedes those claims weren’t backed by solid evidence but represented “broad sketches of the illegalities we thought were happening.”

But the pattern of shady absentee ballots indeed cropped up in the 2016 primary: While Franks had won more than 50 percent of the election day votes, the absentee ballots added more than 300 votes to Hubbard’s total, sealing her apparent win 2,203 to 2,113.

“We had a pretty clearly developed theory for how fraud was taking place in concrete settings,” Roland notes — and that theory soon translated to first-hand accounts from voters who, according to election records, had voted absentee for Penny Hubbard.

Except, Roland started hearing from district voters who insisted they had done no such thing. Just as Giuliani and the other Trump campaign surrogates have in 2020, Roland began collecting affidavits. Some voters claimed they’d been approached by Hubbard campaign workers and asked to sign their name on a document, not knowing they were applying to vote absentee or registering as “incapacitated.”

Others would later detail their experiences to reporters for the Post-Dispatch, which published the results in a barnstorming investigation that corroborated some of Roland's most explosive accusations, including reports that Rodney Hubbard Sr. was known to drop off “stacks of ballots” at the election office during previous elections.

But while Trump’s legal teams have raised seemingly damning testimonies in hundreds of affidavits from voters in various states, the accounts have failed to gain traction in court. Roland observes that among the Trump lawsuits, “there are not that any particular concrete patterns of fraud are taking place, but they're tossing out the idea of the potential of fraud, and they're saying, ‘That's why we need to investigate.’”

For Roland, the irony of the present fraud-focused election drama is that, back in 2016, he had spent months gathering evidence of alleged election fraud, had won a court order giving him the power to investigate, and even had a team of news reporters independently chasing the same suspicions — and yet, at the trial to determine whether the primary result would be overturned, Roland went in a completely different direction.

“When it came down to brass tacks in the trial, we did not call any of the witnesses that could have testified to the chicanery in the Hubbard campaign,” he says. “We weren't asking them to deduct any number of votes from Penny Hubbard; We were asking the court to say that because the legitimacy of outcome is seriously in question, we should have another vote.”

This is why Roland still remembers that “Holy crap” moment when an election worker revealed that more than 100 absentee ballots had been tabulated without envelopes. It turned the case from one of systemic ballot harvesting to one of math: Hubbard had won with a margin of just 90 votes. Around 140 absentee ballots were cast in person at the St. Louis Election Board offices without envelopes, violating the state's rules intended to prevent fraud.

Roland doesn’t see a similar mathematical opening for Trump’s legal team, which has attempted various arguments to disqualify ballots from Democratic areas that arrived or were counted after Election Day. Biden's victory margins are measured in the thousands and tens of thousands, making it “virtually impossible to engineer the number of ballots that you would need to without getting caught,” Roland says.

Maybe, Roland suggests, the Trump campaign could focus on whether mail-in or absentee votes “strictly complied” with the statutory requirements in their respective states.

“But the campaign didn't really do that,” he adds, noting that instead, “They had this grab bag of ideas, and they were just throwing everything at the wall and hoping things would stick, if not in the minds of the judges, then in the mind of the public that would question the legitimacy of the outcome of the election.”

Even while the cases fail in court, it’s the latter possibility, with its emphasis on doubt and potential cover-up, that continues playing out across the country, including in Missouri. Over the weekend, “Stop the steal” protesters with Trump flags and MAGA-adorned trucks turned up to protest outside news stations in downtown St. Louis.

The challenges are also maintaining political pressure on Republican politicians — pressure to which Missouri’s top elected officials are not immune.

On November 10, U.S. Senator Roy Blunt moved to cast doubt on an election that was already a week old, telling reporters, "The President wasn't defeated by huge numbers," and "In fact, he may not have been defeated at all."

Meanwhile, Missouri’s junior U.S. senator, Josh Hawley, spent part of election night as a guest on the show of Fox News’ Tucker Carlson. During the segment, Hawley acknowledged that he didn’t know if allegations of voter fraud in Detroit were “well-founded or not,” but he didn’t let that stop him from lambasting the election system as “begging for” and “inviting” abuse.

Roland raises the theoretical possibility that if state boards refuse to certify votes, the election could be decided by state lawmakers in Republican-dominated legislatures. But he believes the practical political and legal barriers to such a strategy would make it impossible.

Then again, there was a time when Roland and his candidate faced seemingly insurmountable barriers, only to snatch victory from electoral defeat. And Trump still has powerful allies willing to go to bat for him. Even though Trump is allowing the General Services Administration to start the transition process to the incoming Biden administration, the president continues to push conspiracies, presenting the election as a fraud and a "hoax."

On Monday, Trump tweeted, "the GSA does not determine who the next President of the United States will be."

No one knows what Trump might do, or try to do. But whatever it is, he may still have allies willing to abet him. On Friday, Hawley told the Associated Press that he “wasn’t concerned” about Trump inviting Michigan state lawmakers to the White House in an attempt to influence that state’s election certification this week.

When asked whether Trump can act to overturn an election, Hawley responded: “Anything’s possible.”

Follow Danny Wicentowski on Twitter at @D_Towski. E-mail the author at [email protected]
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