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Monthly Archives: January 2008

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31 Thursday Jan 2008

Posted by Michael Bersin in Uncategorized

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CAFOs, Doyle Childers, Joplin Globe, matt blunt

Matt Blunt and Department of Natural Resources Director, Doyle Childers drove four hours to Joplin to try to talk the Joplin Globe out of its editorial policy opposing CAFOs.

It is not at all unusual for a Governor or an MDNR Director to call the Kansas City STAR or the St. Louis POST-DISPATCH about some real or perceived slight or mis-reporting. But, it is extremely rare for the Governor or MDNR Director to show up personally in newspaper offices. This had never occurred at the offices of relatively small newspapers, such as the Joplin Globe.

For all the good it did the guv. Which was none. You can read all about it on Ken Midkiff’s site.

Three In: GOP Candidates for Guv

31 Thursday Jan 2008

Posted by Michael Bersin in Uncategorized

≈ 9 Comments

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Kenny Hulshof, Peter Kinder, Sarah Steelman

It’s Hulshof, Kinder, and Steelman on the GOP side of the governor’s race, and my guess is that Hulshof will be the one to beat.

It’s true that he’s never run for statewide office and has no statewide organization in place, as Kinder and Steelman do. He doesn’t have any name ID around the state either, for the same reason. The lack of an organization could be important, but the name ID? Tell the truth. How many of the Republican voters know who Kinder and Steelman are either? One in 10? In 25?

And Hulshof has some big advantages. First, he’ll have money, and he’s got Bond’s support. His D.C. contacts will help him haul in the cash. Kinder has his share of wealthy contacts, especially among developers and businessmen in  St. Louis and Kansas City. Steelman’s biggest cash source will be trial attorneys. We’ll get a better idea at the end of the cycle (end of March) whether their sources can match Hulshof’s.

Another Hulshof advantage–but one that Steelman can neutralize–is his reputation on the ethics issue. He has no obvious ties to the boy-gov who could conceivably end up being indicted for … one of his many shady deals … before the election. Kinder, though, tied to the current administration as he is, will be tarred with the same brush when the subject of corruption arises–not to mention the subject of Medicaid cuts.

Hulshof, on the other hand, according to everybody, is “squeaky clean.” Even the liberal-leaning Post-Dispatch editorial page gave kudos to Kenny for being tossed off the House Ethics Committee after contributing to a report that criticized the ethics of then-House Majority Leader Tom DeLay.

Actually, Hulshof’s apparent distance from Blunt is a mirage. He’s hired John Hancock, Blunt’s main man, as his consultant. But that detail will escape most voters. They’ll assume Hulshof and Blunt are barely, if at all, acquainted. While they’ll be mistaken in not associating Hulshof with Blunt, his association with Bush is undeniable:

A quick look at Hulshof’s record: Hulshof has voted with President Bush more than 92% of the time and voted with the Republican Party 95% of the time.

He’s been a proponent of the Iraq War from the get go and opposed the expansion of SCHIP. Kinder and Steelman might not point those problems out, might not see them as problems. But trust the Democrats to mention it.

Steelman is the only one of the three without damaging ties to damaged goods. And, like Hulshof, she has some credibility on the ethics issue herself, having stuck by her ethical guns by “withholding tax incentives from an ethanol plant with investors who have first-degree ties to elected officeholders.” Since the main such officeholder was Sam Graves, she was standing up to one of the big boys.

On the other hand, Steelman’s squeaky clean image gets smeared by the fact that she is employing Jeff Roe, one of the dirtiest campaigners around. And she’ll be hurtin’ for certain soon about her job performance as an investor. Steelman serves on the board of the Missouri State Employees’ Retirement System (MOSERS). The fourth quarter 2007 MOSERS investment report is due out soon and it’s not going to be pretty:

Informed observers note that risky bets on Steelman’s watch could expose state taxpayers to  hundreds of millions of dollars in losses.  Under Steelman, MOSERS has gambled heavily on real estate, timber, foreign stock markets, foreign debt, distressed debt, job-killing corporate buy-outs and go-go hedge funds.

So. Plenty of negatives to go around for all three of these contenders. And whichever one of them gets nominated, the negatives will still be there.

The irony impaired opponent of the “Missouri Court Plan”

31 Thursday Jan 2008

Posted by Michael Bersin in Uncategorized

≈ 2 Comments

A new group has popped up (well, at least their web site has) to voice its opposition to the non-partisan way we select our Appeals Court judges and Supreme Court justices: Better Courts for Missouri. Their Internets domain is newmoplan.com. I did a domain search to find out who owned it. No luck.

The web site is slick, and without any hint of irony, they state:

…Please join us as we work to update and improve the Missouri Court Plan and restore open transparency to judicial selection…

[emphasis added]

One question: If your main concern, the closing argument as it were, is all about transparency, don’t you think you’d list all the people involved in your enterprise?

Nope. Not for these folks. There’s not one name on the web site. Nada. Zip. Zero.

I did a committee search at the Missouri Ethics Commission for “Better Courts for Missouri”. Nada. Zip. Zero.

There is a little disclaimer at the bottom of their home page:

Better Courts for Missouri is a Missouri not-for-profit corporation that is exempt from Federal income tax under section 501(c)(4) of the Internal Revenue Code. Contributions to Better Courts for Missouri are not tax deductible.

Aha. A clue.

Let us Journey to the Missouri Secretary of State’s web site (bless you Robin Carnahan, for all that you do!) and look up a Missouri Corporation:  

Well, what do you know? “Better Courts for Missouri” is the fictitious name for “Misourians for Open and Accountable Judicial Selection”.

Better Courts for Missouri Legal

Fictitious Registration – Domestic – Information

Charter Number: X00870661

Status: Fictitious Active

Entity Creation Date: 1/29/2008

Expiration Date: 01/29/2013

[Name Not Available] [Address Not Available]

[emphasis added]

And, they’re brand new!

Hmm. Let’s got back to the Missouri Ethics Commission and search for that committee. Nope. Nada. Zip. Zero.

Back to the Secretary of State:

Missourians For Open And Accountable Judicial Selection Legal

Non-Profit Corporation – Domestic – Information

Charter Number: N00868486

Status: Good Standing

Entity Creation Date: 1/18/2008

State of Business.: MO

Expiration Date: Perpetual

Last Annual Report Filed Date:

Last Annual Report Filed: 0

Registered Agent

Agent Name: Snr Registered Agent Services, Inc.,

Office Address: One Metropolitan Square Building, Suite 3000

211 North Broadway

St. Louis MO 63102

Mailing Address:

[emphasis added]

Well, go figure, they’re new, too.

And, looking at their first filing with the Secretary of State, one finds that William Placke of Eureka, Missouri is the incorporator. Their “Purposes” (in Artcle VII) doesn’t say anything about transparency, but does say:

(a) To promote public awareness of the process for the appointment of judges in the State of Missouri;

(b) To advocate for change in the method of judicial appointment and to lobby for appropriate legislative and regulatory reforms necessary to accomplish such changes;

(e) To engage in similar educational, advocacy and lobbying activities.

Lobbying. I seem to recall something about that at the Missouri Ethics Commission. Nope. Nada. Zip. Zero.

Who is Mr. Placke?

Detailed Summary of Contributions And Loans Received

Committee: LEMBKE FOR SENATE

Report Date: 1/7/2008

William J. Placke Eureka, Mo 63015 Attorney 12/17/2007 $500.00

He’s an attorney?

Court Plan detractors mislead the public, push politics over fairness

FOR IMMEDIATE RELEASE

Friday, November 09, 2007

Jefferson City – St. Louis attorney William Placke’s plan to undermine the Missouri Non Partisan Court Plan for choosing judges is being circulated in an attempt to convince voters that the Plan denies them input to the judicial selection and retention process….

March 16, 2007

Senate Judiciary Committee Holds Hearing on House Joint Resolution 1

The Senate Judiciary Committee on Monday heard testimony for and against House Joint Resolution 1, a proposed constitutional amendment that would remove state court jurisdiction in tax and spending issues.

The House passed the measure in early March. The Missouri Bar opposes the resolution, expressing concerns that the measure would strip the public of their rights of access to state courts in many cases and threatens Missouri’s system of checks and balances. (Click for information on action and media coverage related to HJR1)

Testifying in Favor of HJR 1

Judge Robert H. Dierker, Jr., 22nd Judicial Circuit

William Placke, St. Louis Chapter of the Federalists Society

John Stoeffler, Madison Forum

Lowell Pearson, Deputy Director, Missouri Department of Revenue

Ron Calzone of Missouri First

Testifying Against HJR 1

Former Missouri Supreme Court Judge John C. Holstein

Former Missouri Supreme Court Judge Edward “Chip” Robertson

Missouri Bar Past President Douglas A. Copeland

Dean R. Lawrence Dessem, University of Missouri – Columbia School of Law

Thomas F. Simon, Clerk of the Supreme Court of Missouri

[emphasis added]

SLU Law School hosting debate over “Missouri Plan”

By Jo Mannies

09/28/2007 3:04 pm

…William Placke of Charter Communications (and president of the local chapter of the Federalist Society) will join attorney Thomas Walsh, partner at the Sonnenschein law firm, in speaking against the current plan….

So far, I can only find one name to attach to the web site. At this point we can’t really quantify the grassroots support for someone’s impossible dream to change the Missouri non-partisan court plan.

The title of this post has to stand.

Robin Carnahan to seek re-election as Secretary of State

30 Wednesday Jan 2008

Posted by Michael Bersin in Uncategorized

≈ 4 Comments

From the Associated Press:

“…After careful consideration over the past several days, I have made the decision to run for re-election as secretary of state,” Carnahan said in a written statement released Wednesday…

Robin Carnahan is a formidable individual, public servant, and politician. We are all lucky to have someone like her in the Secretary of State’s office – especially so, for this upcoming election.

“Public places are not public.”

30 Wednesday Jan 2008

Posted by Michael Bersin in Uncategorized

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Elbert Walton

Last week, Elbert Walton Jr. uttered lines even Yogi Berra might be proud of: “You don’t have the right to go into public places. Public places are not public. They’re private.”

A Wednesday Post-Dispatch editorial laid into Elbert Walton for trying to keep residents out of the (public) Normandy Fire District board meetings. They complain too much and too loudly. Walton plans to hire an off duty County cop to arrest any residents who fail to exhibit all the decorum he deems proper.

And what do these impolite residents have to kvetch about?

As Elizabethe Holland of the Post-Dispatch has reported, in his first six months as the district’s attorney, Mr. Walton billed Northeast taxpayers for $76,671 in legal fees. That was six times more than his predecessor billed in an average year. Even by the loosey-goosey standards that govern many of the area’s dozens of fire districts, Mr. Walton’s bill is steep. The median for legal fees in those districts is $20,000 – per year.

Mr. Walton’s contract with the district – a contract he wrote – also provides him with life, health and accident insurance, along with other fringe benefits. Assuming he keeps billing at his current rate – “There’s a lot more work to be done,” he has said – the district could be spending as much as 7.5 percent of its $2 million annual budget on his legal fees.

And here’s the sweetest part: The more people complain about it, the more money Mr. Walton makes. Anyone who wants to ask the board a question at a district meeting (not counting its unannounced meetings at the Berkeley Steak ‘n Shake) must do so in writing. Mr. Walton then writes a letter in reply, at $200 an hour for his services. If the person making the inquiry has been labeled as disruptive, Mr. Walton writes a letter – at $200 an hour – saying he won’t answer any questions until the person writes the board an apology.

The Post points out that the fire district is getting “hosed.”

I have only one point to add to the Post’s excellent editorial, and that is that Walton runs a large slate of African-American candidates in North St. Louis County in every election. As that area turns increasingly black, the voters there need more black representation, according to Walton and his wife, Rep. Juanita Head Walton.

That’s probably true, and I have no problem with more representative representation.  Unless the candidates who get elected see to it that Walton is hired. In that case, they’re not doing their constituents–of whatever race–any favors.

More McCaskill and FISA

30 Wednesday Jan 2008

Posted by Michael Bersin in Uncategorized

≈ 5 Comments

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Arlen Specter, Claire McCaskill, Congress, Dianne Feinstein, FISA

Thanks to everyone for all their hard work over the last week in stopping the Telecom Immunity Bill in the Senate. Because you kept up the pressure on McCaskill, she voted “No” on the telecom immunity bill before Congress on Monday. And believe me, all your calls and faxes had an effect. Early on, the staffers answering the phones hardly offered to take down your contact information, and didn’t really seem to know why changes to FISA were a big deal. Now, they’re polite and much more apt to listen to your concerns about government spying. It’s crazy that any effort at all is required to open a government official’s eyes and ears, but that makes our effort all the more urgent.

Unfortunately, McCaskill’s going to need to hear a little more from us. I have it on good authority that while McCaskill opposed the McConnell version of telecom immunity, she favors the “compromise” Feinstein or Specter version of telecom community.

More below the flip.

The Courage Campaign has outlined the reasons why Feinstein’s and Specter’s amendments aren’t worth the paper they are printed on.

First, the Feinstein amendment kicks the question of whether or not telecom companies were guilty of cooperating with Bush’s illegal wiretaps to the FISA court. In other words, a secret court with no public scrutiny or accountability will determine the question of immunity, and we may never even know which way the court decided.

Second, the amendment establishes a “good faith” test to determine whether a company was guilty. In other words, a telecom company could be found guilty of illegal behavior, but let off the hook if they can demonstrate that they didn’t know that they were doing wrong. Gee – I’d love to be held to that standard. I could pay half my taxes and plead that I had made a effort in good faith to total them up correctly, but my math isn’t so good.

The Specter amendment, which would substitute the goverment as the defendant instead of the telecom companies should a case be brought, is also a raw deal for Americans. The US government can bring a lot more to bear in its defense, like as invoking state secrets privileges, than a private entity like a corporation. The ACLU opposes both amendments, because they are both really just splitting the baby. Either you support holding Americans accountable for complicity in illegal acts, or you don’t.

I really don’t understand why, when forced to choose between Sprint and the people of Missouri, McCaskill would side with Sprint. I think we outnumber Sprint a great deal in both votes and donations.

Please contact McCaskill right away:

D.C.

Phone:(202) 224-6154

Fax:(202)228-6326

Kansas City

Phone: (816) 421-1639

Fax: (816) 421-2562

Address:

400 East 9th Street, Suite 40 Plaza Level

Kansas City, MO 64106

Cape Girardeau

Phone: (573) 651-0964

Fax:

Address:

339 Broadway, Room 136

Cape Girardeau, MO 63701

St. Louis

Phone: (314) 367-1364

Fax: (314) 361-8649

Address:

5850 A Delmar Blvd.

St. Louis, MO 63103

Columbia

Phone: (573) 442-7130

Fax: (573) 442-7140

Address:

915 E. Ash St.

Columbia, MO 65201

Springfield

Phone: (417) 291-1475

Fax:

Address:

324 Park Central West, Ste. 101

Springfield, MO 65806

Senator John Edwards is out.

30 Wednesday Jan 2008

Posted by Michael Bersin in Uncategorized

≈ 1 Comment

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John Edwards


According to CNN, Senator John Edwards is dropping out of the presidential race. It was an uphill struggle from the beginning, and he fought hard just to stay in the race this long. As he was just in Missouri campaigning hard, and field staff just arrived to help get out the vote, this is a total surprise to me. I hope and pray that everything is well with Elizabeth, and that this decision to end the campaign had nothing to do with a change in her health.

Consider this an open thread.  

8 day reports – in the 16th and 158th Missouri House special elections

30 Wednesday Jan 2008

Posted by Michael Bersin in Uncategorized

≈ 1 Comment

On February 5th there will be two Missouri House special elections – in the 16th Legislative District between Democrat Tom Fann and republican Mark Parkinson – and in the 158th Legislative District among Democrat Mike Keefe, republican Mary Kasten, and Libertarian Steve Kinder.

Their 4th quarter reports were discussed here.

Candidates must file an 8 day report with the Missouri Ethics Commission. They did so on January 28th. One can compare not only the amounts of money raised and spent, but where it came from and where it has gone. This can give some insight into campaign strategeries:

In the 16th, Democratic Party candidate Tom Fann:

Detailed Summary of Committee Disclosure Report

Committe[e]: FANN FOR FAMILIES

9. TOTAL ALL RECEIPTS THIS ELECTION(SUM 1B + 7A – 8A) $38,433.33

15. TOTAL EXPENDITURES THIS ELECTION (SUM 10B + 14A) $23,167.64

28. MONEY ON HAND AT THE CLOSE OF THIS REPORTING PERIOD (SUM 25 + 26 – 27) $12,211.71

[emphasis added]

If you’ve got it, spend it. After February 5th there is no tomorrow…

Detailed Summary of Expenditures And Contributions Made

Committe[e]: FANN FOR FAMILIES

Report[ ]Date: 1/28/2008

B. ITEMIZED EXPENDITURES ALL OVER $100 AND ALL PAYMENTS TO CAMPAIGN WORKERS

RESEARCH FOR CHANGE 8998 E 25TH DR DENVER CO 80238 01/02/2008 RESEARCH /VOTER FILES $6,000.00

MARKS QUICK PRINTING 9415 PAGE AVE ST LOUIS MO 63132 01/11/2008 SIGNS $243.05

MAD DOG MAIL 2175 W COUNTY LINE RD STE A DOUGLASVILLE GA 30135 01/01/2008 MAILERS $5,357.80

MAD DOG MAILERS 2175 W COUNTY INE RD STE A DOUGLASVILLE GA 30135 01/05/2008 MAILERS $5,600.00

MUELLER SIGN SHOP 4418 MANCHESTER AVE ST LOUIS MO 63110 01/15/2008 SIGNS $1,200.71

[emphasis added]

The three most important expenditures in a state legislative district campaign (in descending order of importance) are direct mail, direct mail, and…direct mail.

In the 16th, republican Mark Parkinson:

Detailed Summary of Committee Disclosure Report

Committe[e]: CITIZENS FOR MARK PARKINSON

9. TOTAL ALL RECEIPTS THIS ELECTION(SUM 1B + 7A – 8A) $42,297.21

15. TOTAL EXPENDITURES THIS ELECTION (SUM 10B + 14A) $22,793.05

28. MONEY ON HAND AT THE CLOSE OF THIS REPORTING PERIOD (SUM 25 + 26 – 27) $18,722.95

[emphasis added]

Signs, signs, everywhere signs…

Detailed Summary of Expenditures And Contributions Made

Committe[e]: CITIZENS FOR MARK PARKINSON

Report[ ]Date: 1/28/2008

B. ITEMIZED EXPENDITURES ALL OVER $100 AND ALL PAYMENTS TO CAMPAIGN WORKERS

Wholesale Printers of Missouri 212 East Cedar Street Jefferson City, MO 65101 01/10/2008 Sign Expense $5,904.74

Thomson Printing 601 North Kingshighway Saint Charles, MO 63301 01/20/2008 Printing Expense $252.39

Photographic Arts P.O. Box 434 Saint Louis, MO 63088 01/10/2008 Photo Expense $513.00

KSC Mail 4605 Morse Road, Suite 101 Gahanna, OH 43230 01/10/2008 Postage $7,000.00

AT&T Wireless P.O. Box 50553 Dallas, TX 75265 01/14/2008 Phone Expense $124.82

[emphasis added]

In the 158th, Democratic Party candidate Mike Keefe:

Detailed Summary of Committee Disclosure Report

Committe[e]: COMMITTEE TO ELECT MIKE KEEFE

9. TOTAL ALL RECEIPTS THIS ELECTION(SUM 1B + 7A – 8A) $27,302.00

15. TOTAL EXPENDITURES THIS ELECTION (SUM 10B + 14A) $23,212.76

28. MONEY ON HAND AT THE CLOSE OF THIS REPORTING PERIOD (SUM 25 + 26 – 27) $4,089.24

[emphasis added]

Detailed Summary of Expenditures And Contributions Made

Committe[e]: COMMITTEE TO ELECT MIKE KEEFE

Report[ ]Date: 1/28/2008

Southeast Missourian Newspaper, 301 Broadway, Cape Girardeau, MO 63701 01/17/2008 Advertising $1,760.00

Withers Broadcasting Inc. 901 South Kingshighway, Cape Girardeau, MO 63703 01/21/2008 $3,112.00

Mississippi River Radio, 324 Broadway, Cape Girardeau, MO 63701 01/21/2008 Advertising $1,218.00

Zata 3 Consulting, LLC 458 New Jersey Ave, SE Washington DC 20003 01/14/2008 Consultation $750.00

Commercial Mailing Services, 2089 Bessie, Cape Girardeau, MO 63701 01/08/2008 Mailing Services $10,321.49

[emphasis added]

Have I ever mentioned that I hate newspaper advertising as a major campaign expense?

In the 158th, republican Mary Kasten:

Detailed Summary of Committee Disclosure Report

Committe[e]: FRIENDS OF MARY KASTEN

9. TOTAL ALL RECEIPTS THIS ELECTION(SUM 1B + 7A – 8A) $46,240.00

15. TOTAL EXPENDITURES THIS ELECTION (SUM 10B + 14A) $24,675.56

28. MONEY ON HAND AT THE CLOSE OF THIS REPORTING PERIOD (SUM 25 + 26 – 27) $20,714.44

[emphasis added]

Obviously saving all that money for the balloon drop at the election night party…

Detailed Summary of Expenditures And Contributions Made

Committe[e]: FRIENDS OF MARY KASTEN

Report[ ]Date: 1/28/2008

B. ITEMIZED EXPENDITURES ALL OVER $100 AND ALL PAYMENTS TO CAMPAIGN WORKERS

Celebrations PO Box 129 Cape Girardeau, MO 63702 01/04/2008 Catering Expense $3,846.45

Merriwether Investments 400 Broadway Cape Girardeau, MO 63701 01/04/2008 Office Rent $600.00

River Radio 324 Broadway Cape Girardeau, MO 63701 01/04/2008 Political Advertising $2,385.70

Southeast Missourian 301 Broadway Cape Girardeau, MO 63701 01/04/2008 Political Advertising $650.01

Survey St. Louis PO Box 432 St. Charles, MO 63302 01/04/2008 Printing Expense $1,400.00

Cape VFW Post 3838 1049 Kingshighway Cape Girardeau, MO 63701 01/15/2008 Room Deposit $100.00

Postmaster 320 North Frederick Cape Girardeau, MO 63702 01/18/2008 Postage $104.00

[emphasis added]

I swear I made that joke before I saw the detailed expenses.

I suspect there’ll be a direct mail drop somewhere in a 24 hour report.

Ask for a paper ballot.

29 Tuesday Jan 2008

Posted by Michael Bersin in Uncategorized

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computerized voting, paper ballots

Heed this message:

AN URGENT MESSAGE FROM MISSOURIANS FOR HONEST ELECTIONS

(www.mohonestelections.org):

Ask for a paper ballot when you vote in the Missouri presidential primary on February 5th! Please relay this message to as many Missouri voters as you can!

The ES&S iVotronic touch-screen machines used in St. Louis County have recently been decertified by the Colorado Secretary of State because of security vulnerabilities.

The Diebold Accuvote touch-screen machines used in the City of St. Louis and in Kansas City have recently been decertified by the California Secretary of State because of security vulnerabilities.

Should we be alarmed? Indeed we should!

A paper ballot will be available for voters to use throughout Missouri in the primary on February 5th. While most–if not all–of these will

be counted by optical scan machines, which also have security problems, the paper ballot they scan is a sturdy piece of paper that the voter has marked by hand. This ballot thus is a durable, accurate record of the voter’s intentions and can easily be counted by hand if needed in case of a recount.

Don’t forget: VOTE ON PAPER! And help us to spread the word!

Coughing up a giant hairball: the Western Court of Appeals rules on the Johnson County recount case

29 Tuesday Jan 2008

Posted by Michael Bersin in Uncategorized

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I’ve written about this case in the past:

For some of us, it’s not over

For some of us, it’s not over – part 2

For some of us, it’s not over – part 3

After hearing oral arguments in April 2007, from an election recount which took place in February 2007, for an election which took place in November 2006, the Court of Appeals issued an opinion today:

C. Kay Dolan, Respondent, and Monica Penrose, Plaintiff, v. Gilbert Powers, Defendant, and Teresa A. Collins, Appellant and Lynn Stoppy Brackin, Defendant.: WD68098

Opinion

Missouri Court of Appeals Western District…

…Handdown Date: 01/29/2008

Appeal From: Circuit Court of Johnson County, Hon. John R. O’Malley, Judge

Counsel for Appellant: Jean Paul Bradshaw II

Counsel for Respondent: Patrick Andrew McInerney

Opinion Summary:

Teresa A. Collins appeals a trial court’s judgment declaring C. Kay Dolan the winner of the Johnson County, Missouri Auditor’s race after a statutorily-authorized recount.

AFFIRMED IN PART, REVERSED IN PART, AND REMANDED.

Division holds: Ballots containing marks in or around a candidate’s party affiliation were properly counted, as they constituted distinguishing mark adjacent to the party name. However, the trial court was without sufficient evidence to decide whether the absence of statutorily mandated judge’s initials was due to mistake. The judgment is affirmed as to the party affiliation ballots and is reversed and remanded for further proceedings on the question of whether the absent initials were the result of mistake….

We’ll continue this interesting story with two letters to the editor (both papers are still in the 19th century – the letters are not available online):

The Holden Image

Thursday, March 1, 2007

Letters To The Editor…

Dear Editor,

As I read the article, “County Clerk Clears Up Misinformation Concerning Recount,” which appeared in the February 15, 2007 Image I was struck by what he said to your paper. While I would certainly agree that there has been misinformation circulated about the recent election recount, I would have to say that County Clerk Gilbert Powers is the source of much, if not all, of it.

Gilbert Powers obviously didn’t tell the Image that “nearly the last day allowable” for the filing of the recount petition by Monica Penrose and Kay Dolan was actually December 6, 2006.  What Gilbert Powers neglected to tell the Image was that his own response, as those of Teresa Collins and Lynn Brackin, was not filed until December 21, 2006, the Thursday immediately before Christmas.

Now, Gilbert Powers was quoted in the Image as saying “Myself and my attorney were anticipating that an order for the initial hearing on the recount would come before Christmas…” I know of no one who would anticipate in good faith the issuance of a Court order on the Friday before a Christmas holiday (which fell on the following Monday) – this, after filing his own extensive petition with the Court the day before.  In my opinion Gilbert Powers obviously needs to get better legal advice.

The Court filings are available for viewing by the public at the Circuit Court office in downtown Warrensburg.

I attended the first court hearing on the recount in Warrensburg on January 3, 2007, which was presided over by Judge John O’Malley.  Gilbert Powers’ attorney, Mary Ann Young, stated that he would be out of the country on vacation from January 5 through January 15, purportedly “someplace warm”. The recount process was delayed so your County Clerk could go on vacation.  Gilbert Powers also stated under oath that he wanted the recount take place after the February 6, 2007, Warrensburg city election. Your County Clerk also spent a half a day of the Court’s time trying to prevent a hand recount of the ballots.

On Monday, February 5, 2007 Judge O’Malley issued an order which stated in part, “The Court hereby orders the recount to begin on the earlier of February 21, 2007, or the weekday following the date by which the Clerk notifies the Court of his office’s preparation of the recount. The Court expects Contestee Powers to comply with all statutory requirements in accordance with these dates.” This doesn’t sound like a Court which is pleased with Gilbert Powers’ alacrity, especially in light of  the motion filed with the Court on February 2, 2007 asking that Gilbert Powers be held in contempt for not immediately setting a date, as required by law, for the recount to start.

Gilbert Powers contacted me by phone on the evening of February 4, 2007, (right after the Super Bowl started) to ask me if I was still available to work on a recount team.  He told me that the recount could take three weeks and asked me if that was a problem.  I replied that it would not be a problem and that I considered my service an obligation equivalent to jury duty. I got the distinct impression that he was disappointed in my affirmative response.

What really upsets me is his conscious effort to delay the recount – and his efforts to tell the voters a different story through the Image.  If you think that the voters of Johnson County should have waited almost four months to get the results of the November 2006 election for no good reason, then you should probably vote to re-elect Gilbert Powers in 2010.

Sincerely,

Michael Bersin

Member – Recount Team 2

And the second letter:

The Daily Star-Journal

Friday, March 2, 2007

Letters To The Editor

Questioning The Motive

On Thursday, February 22, 2007, I was surprised to read the article (“Recount Shows Dolan Ahead in Votes”) on the front page of the Star-Journal quoting County Clerk Gilbert Powers extensively and revealing details contained in the Report of Findings for the recent election recount.

During the morning of that same Thursday I went to the Circuit Court office to obtain a copy of the report. I was informed that the document had been sealed by the Court (a so-called “gag order”) and that I would not be able to get a copy at that time.

At 3:30 p.m. on Friday, February 23, after that morning’s hearing, I again went to the Circuit Court office to obtain a copy of the report.  I was told that the report remained under Court seal, but they would contact the judge to see if he would allow its release.  After waiting approximately 30 minutes I received a copy.

Apparently I was the first individual, other than the parties to the case, to receive a copy of the Report of Findings after the gag order had been lifted – more than 24 hours after the contents of the report appeared in the Star-Journal.  If the paper could not have obtained a copy of a report on its own, we are left to wonder at the motives of a self-serving public official leaking limited details to the Star-Journal in violation of a Court order.

Further, the same article makes reference to the details of a cover letter submitted along with the report and goes on to state, “Someone in the recount room violated their recount oath.”  This unfairly impugns the reputations of all of the public spirited individuals on the counting teams, and in particular, those of one political party, who didn’t have access to the information allegedly “leaked”.  Counting team members did not have knowledge of the final results of either election recount until Tuesday, February 20, 2007 – and, still under oath and governed by statute at the time the article appeared, were placed in the position of not being able to respond to what amounted to a scurrilous allegation. Why would Gilbert Powers do this?

Michael Bersin

Member – Counting Team 2

Warrensburg

Editor’s Note: The Daily Star Journal received the Report of Findings from County Clerk Gilbert Powers Wednesday afternoon, soon after they were filed and before Judge John O’Malley had ordered the document sealed by the court

Uh, yeah. I was smack dab in the middle of this one. And it was (and still is) nasty.

There’s plenty to this story.

On Election Day 2006 the largest precinct in Johnson County (Pittsville – approximately 2600 voters) ran out of ballots.

Turnout is always high in Johnson County, and in fact, in November 2006 it was above 60%. For anyone who has ever spent any time here working in politics high turnout in any general election should never be a surprise in Johnson County. But the largest precinct (in voter population) in the county ran out of ballots. Who was responsible for that?

That ballot shortage might seem to be pretty significant when one notes that the difference in the County Auditor race was 3 votes (on the night of the election) and the difference in the Prosecuting Attorney race was 46 votes.

But, I digress.

So, let’s get continue with the full opinion. The “Statement of Facts” in these appellate decisions give you a decent background:


…Citation:

Opinion Author: Ronald R. Holliger, Judge

Opinion Vote: AFFIRMED IN PART, REVERSED IN PART, AND REMANDED. Breckenridge, P.J.,(FN1) and Spinden, J., concur.

Opinion:

In this election contest case we are asked to determine whether the trial court properly ruled with regard to counting certain contested ballots in an extremely close local race for county auditor of Johnson County. The results of the recount changed the initially announced result of the election. Teresa A. Collins now appeals the trial court’s judgment declaring C. Kay Dolan to have been the actual winner of the race after the recount that was required by law because of the closeness of the vote. Collins argues six points on appeal, three of which are dispositive. She challenges the inclusion in the final tally of certain ballots falling into two separate classes. The first are what we will call party identification ballots. The second is a group of ballots that did not contain the initials of election place polling judges. We find that the ballots containing marks in or around the candidates’ party affiliations were properly counted, as they constituted a distinguishing mark adjacent to the candidate name. However, we believe that the trial court was without sufficient evidence to decide whether the absence of the statutorily mandated judge’s initials was due to mistake and, therefore, remand on this point. Therefore, the judgment is affirmed in part and reversed in part.

Statement of Facts

The general election for Johnson County, Missouri, Auditor was held on November 7, 2006, and Teresa A. Collins was declared the winner by a margin of four votes. Her opponent, C. Kay Dolan, filed this suit challenging the election results pursuant to section 115.601.1.(FN2) After a hearing on January 3, the court ordered that a hand recount be conducted of all ballots cast using optical scanning equipment,(FN3) and thereafter issued a Writ of Recount pursuant to Section 115.585(FN4) and Section 115.587(FN5) setting out the specifics of how the recount would be conducted.

The day after the conclusion of the recount, Gilbert Powers, the Johnson County, Missouri, County Clerk, submitted his Report of Findings to the court. The report concluded that Dolan, not Collins as originally announced, had won the race by a three—-vote margin. The report also identified twenty—-one challenged ballots, of which, three ballots were challenged by the statutory recount “team,” a “team member” challenged eleven ballots, and an “observer” challenged seven ballots. Of the twenty—-one challenged ballots, Respondent Powers counted eighteen ballots in reaching the recount result: fourteen for Dolan and four for Collins. After a hearing on the challenged ballots, the court found that Dolan won the election by two votes, concluding that the recount team should not have counted one of the ballots.

On February 27, the court entered its amended order/judgment, which memorialized its rulings on the challenged ballots and declared Dolan the winner of the Auditor’s race. It also ordered Collins to give up the office of County Auditor.

Collins argues six points on appeal. In points I, II and IV she attacks the court’s counting of Ballot numbers 22, 23, 25, 26, 29, and 30 on the grounds, variously, that the court misapplied the law, failed to apply the law, or that the judgment violated the statewide, uniform counting standards required by the equal protection clause. These are the so—-called party affiliation ballots. In point III, she makes an additional attack on the counting of ballot number 22, asserting that it should have been held to be an invalid overvote. Alternatively, she argues that if the standard applied to number 22 was correct, the court should have also counted ballot number 11. Three points are dispositive and, therefore, will be addressed below.

In her first point on appeal, Collins argues that ballots containing a circle around the candidate’s party affiliation should not have been counted because those ballots did not contain a mark in the “target area” of the ballot. In her fifth point, Collins argues that the court erred in counting eleven ballots as valid votes because those ballots contained no authenticating initials of the election judges as required by statute.(FN6) In her sixth point, Collins argues that the trial court erred in not permitting her to conduct discovery concerning the challenged ballots that did not contain the initials of the election judges.

Missouri Secretary of State’s Uniform Counting Standards

The parties agree that the Missouri Secretary of State’s Uniform Counting Standards for Optical Scan Ballots (UCS), published at 15 CSR 30—-9.020, as well as Chapter 115 of the Missouri Revised Statutes, direct the outcome of the case.

The national drive to develop specific, uniform, statewide standards for counting mismarked ballots in close elections began with the Supreme Court’s decision in Bush v. Gore, 531 U.S. 98 (2000), and the Florida election recount which spawned that decision. Bush vacated a Florida Supreme Court decision, which had ordered a partial recount of punch—-card ballots in the 2000 presidential election. The Florida Supreme Court had ordered recount teams to determine whether additional “legal votes” existed among the ballots that tabulating machines had not counted; a “legal vote” was defined as “one in which there is a ‘clear indication of the intent of the voter.'” Id. at 102. The Supreme Court held that conducting a recount under this amorphous standard would deny voters equal protection of the laws. Id. at 103. The Court held that equal protection guarantees applied not only to the right to vote, but also to the manner in which the franchise is exercised. Id. at 104—-05. Therefore, equal protection demands that ballots be considered according to specific, uniform, statewide standards, beyond vague directives to determine “the intent of the voter.” Id. at 105—-06.

In the aftermath of the 2000 election and Bush, the United States Congress enacted the “Help America Vote Act” (HAVA), which contains detailed extensive provisions designed to upgrade and modernize voting equipment and election processes throughout the country. HAVA required that “[e]ach State” adopt “uniform and nondiscriminatory standards that define what constitutes a vote and what will be counted as a vote for each category of voting system used in the State.” 42 U.S.C. Section 15481(a)(6). Missouri Secretary of State Robin Carnahan responded to this HAVA command by reviewing and substantially revising Missouri’s UCS. The UCS are tailored to each type of voting system used within the State, and are accompanied by illustrations intended to provide further specific guidance to persons called upon to determine the legality of individual ballots.

Party Affiliation Ballots

Despite the instruction at the top of the ballot stating that “To vote, darken the oval(s) completely next to your choice(s), like this: [example]”(FN7) six voters made marks in, over, or around the candidate’s party affiliation to the right of the candidate’s name on the ballot, rather than in the oval to the left of the candidate’s name. The recount team counted all six party affiliation ballots in Dolan’s favor. The court counted all but one in Dolan’s favor.(FN8) On appeal, Collins argues that none of these ballots should have been counted because they did not contain a mark in the “target area” of the ballot nor did they have a circle around the name of the voter’s preferred candidate. She argues that these are the only two options that the UCS provides and that when promulgating the UCS, the Secretary of State expressly considered and rejected counting ballots with marks placed over the candidate’s party name. As support for that position, she points to the fact that the proposed rule contained such an inclusion, which was ultimately not incorporated into the UCS.

The parties disagree as to the standard of review with regard to the trial court’s determination of whether these ballots were marked in the “target area.” Collins argues that it is a question of application of the law, which we review de novo. See Dudley v. Agniel, 207 S.W.3d 617, 618 (Mo. banc 2006). Dolan argues that it is a question of fact, which we review under the standard of Murphy v. Caron, 536 S.W.2d 30 (Mo. banc 1976). Dolan argues that there is no definition of target area in the UCS and, therefore, it was a factual question as to what the target area was. We disagree. To hold that the question was merely one of fact would undermine the statutory and constitutional requirement of a uniform statewide counting standard. Nevertheless, we likewise do not accept Collins’ argument that the statutes and regulations define a proper ballot as being only one that has a mark in the oval. The oval is the “target area” as Collins contends. See 15 CSR 30—-9.020 (3)(A). However, the regulation does not limit the definition of a proper mark to one that is in the oval. In full, the regulation establishes:

           The following marks shall be considered expressions of voter intent: (A) Any ballot which is properly marked in the target area as specified by the ballot instructions. (B) [not relevant here]. (C) The target area next to a candidate or issue preference is circled. (D) There is a distinguishing mark in the target area next to a candidate or issue preference issue, including but not limited to the following examples: [exemplar ballots and marks set out in the regulation]. (E) The name of a candidate or issue preference is circled. (F) [not relevant here].

15 CSR 30—-9.020 (3). In essence, Collins contends that if a ballot is not marked as shown in one of the examples illustrated in the regulation, it cannot be considered indicative of voter intent. We disagree with her conclusion and do not believe that either the Missouri General Assembly or the UCS intended that result.

Dolan argues that the examples set out in subsection (D) are by their own terms not exclusive. Although correct, we do not agree with Dolan that this subsection creates a different definition of target area. We believe that Collins correctly argues that subsection (D) only applies to various methods of marking (other than filling in) the target area, which in the case in question is the oval. That agreement with Collins’ argument does not mean, however, that the trial court erred.

We must also be guided by the instructions given by the legislature in Chapter 115 of the Missouri Revised Statutes at the same time that it directed the Secretary of State to develop the regulations being discussed. Under the section titled “Counting of Votes” the election authority is given specific standards of how to count votes depending on which type of system is used to cast the ballot. For counting ballots cast using optical scan voting systems (the system in question here), it is directed that:

           “In jurisdictions using centrally based tabulators, if a ballot is so rejected it shall be reviewed by a bipartisan team using the following criteria:

           …

(b) Voter intent shall be determined using the following criteria:

                                   a. There is a distinguishing mark in the printed oval or divided arrow adjacent to the name of the candidate or issue preference. [This provision is incorporated and explained in subsections (A) and (C) and (D) of the regulation as discussed above.]

                                   b. There is a distinguishing mark adjacent to the name of the candidate or issue preference”: or

                                      1. The name of candidate or issue preference is circled. [This provision is incorporated and explained in subsection (E) of the regulation.]

Section 115.456.2(3)(b)b (2006 Cum. Supp.) (emphasis added).

There is no portion of the regulation that sets out or explains subsection b. of the statute. To accept Collins’ argument would force us to conclude that subsection b. has no meaning because it is not incorporated into the UCS by the Secretary of State. We cannot assume the legislature intended a meaningless act. Wollard v. City of Kansas City, 831 S.W.2d 200, 203 (Mo. banc 1992). It is this provision of the statute that we will consider in determining whether the election judges and the trial court erred in applying it to the ballots in question.(FN9)

Here, the court counted five ballots (numbers 22, 23, 25, 26 and 30) in which marks were made in, over, or around the candidate’s party affiliation to the far right—-hand side of the ballot, rather than in the oval immediately to the left of the candidate’s name. The definition of “adjacent” is “[l]ying near or close to; sometimes, contiguous; neighboring.” BLACK’S LAW DICTIONARY 41 (6th ed. 1990). A mark made in, over, or around the candidate’s party affiliation, which is to the right of the party’s name is sufficient to satisfy the “adjacent to” requirement of Section 115.456.2(3)(b)b. It is particularly noteworthy that the voters casting the ballots in question had consistently marked or circled each candidate’s party affiliation, and had voted for candidates from differing parties. Nevertheless, Collins argues that the ballots were improperly counted because they violated the last clause of section 115.456.5 that “[n]otwithstanding any other provisions of law, a distinguishing mark indicating a general preference for or against candidates of one political party shall not be considered a vote for or against any specific candidate.” We agree with Dolan that the use of the singular term “mark” along with the phrase “indicating a general preference” is a prohibition against strict party voting. The legislature’s intent to prohibit voting by way of a “straight party ticket” is also evident from section 115.237, which prohibits the election authority from designing a ballot that allows “a person to vote a straight political party ticket.” Section 115.237.4.

Separate Challenge to Ballot Number 22

Collins separately challenges ballot number 22 on an additional ground. She contends that it should not have been counted in favor of Dolan because it was an overvote. Alternatively, she argues that if it was properly counted then ballot number 11 in favor of Collins was improperly and inconsistently rejected as an overvote. An overvote occurs when a ballot is marked for more than one candidate in the same race. Overvotes are not to be counted. Section 115. 453(2). On ballot number 22, the oval next to Dolan’s name was completely filled in while there was a small mark in the oval next to Collins’ name. The court found that the mark in the oval next to Collins’ name was so small that it appeared to be infinitesimal and a stray mark. Collins now argues that, under the statute and the regulation, both marks are distinguishing marks indicating a vote for both candidates. She argues again that, under regulations, no example is given permitting such an action. She also relies on the fact that, in her final regulation, the Secretary of State omitted a provision in the proposed rule that would have allowed hesitation or stray marks to be considered an expression of voter intent. The examples given in 15 CSR -30.9.020(F) are for situations where the voter has clearly and expressly made a distinguishing mark that would otherwise be sufficient to be counted as a vote for both parties in the race. She has turned this example on its head and contradictorily argues that a hesitation or stray mark on ballot 22 should be counted as a vote for her. This is the position rejected apparently by the Secretary in adopting the final regulations. Moreover, all of the examples set forth in the UCS deal with situations where a clear overvote has been cast and some other marking is used to determine which mark should be counted. Nor do we accept Collins’ argument that consistency would also require counting ballot 11 in her favor under the standard applied by the court. Ballot number 11 contains an oval completely filled in for Collins. The oval next to Dolan’s name contains a mark that fills nearly 25% of the oval and extends beyond its boundary. It is not a stray or hesitation mark and would clearly be sufficient to constitute a “distinguishing mark” for a candidate. It was clearly an overvote under the statutory standard. Ballot number 22 was not.

In conclusion, we find that the trial court correctly counted ballots 22, 23, 25, 26, and 30 for candidate Dolan. Its ruling and judgment comport with the statutes, UCS, and the requirements of equal protection. The court did not apply personal and subjective tests in determining voter intent. Points I, II, III, and IV are denied.

Because the counting of these ballots does not definitively determine the results of the election from the recounts, we must consider the challenges to the other class of ballots.

Non—-initialed Ballots

During the recount, Respondent Powers and the recount team counted eleven ballots that were not initialed by the election judges as required by statute. These ballots were marked seven to four in favor of Dolan. Section 115.457 provides that “[i]f a ballot appears without the initials of two election judges, the ballot shall be rejected, except when it appears the absence of initials is due to mistake of the election judges and that the ballot is otherwise legal and proper.” The court held that the unauthenticated ballots should be counted in the absence of evidence of “some sort of obvious irregularity.” Collins argued that she should have been permitted to conduct “very limited discovery” into the circumstances surrounding the absence of the required election judges’ initials. The court denied this request.

A quick outline of the voting procedures will assist us in our analysis. A voter entering a polling place first signs the precinct register, and two election judges of opposing political parties identify the voter and initial the register. Section 115.431 (2006 Cum. Supp.). “All voter’s names on the precinct register [are] numbered consecutively in the order in which they have signed. . .” Section 115.431 (2006 Cum. Supp.). After the voter’s identity has been certified, “two judges of different political parties, or one judge from a major political party and one judge with no political affiliation, shall . . . initial the voter’s ballot or ballot card.” Section 115.433 (2006 Cum. Supp.). Once these requirements have been satisfied, “the election judges shall allow the voter to proceed to the voting booth and vote.” Section 115.435.

Immediately after the polls close “in each polling place using an electronic voting system, the election judges shall secure the marking devices against further voting” (FN10) and “remove the ballot cards from the ballot box and separate the ballots with write—-in votes from those without write—-in votes.”(FN11) Section 115.467.1 & .2. “All ballot cards shall be counted in order by polling place.” Section 115.477.2. A return shall be produced by the automatic tabulating equipment(FN12) “showing the total number of votes cast for each candidate . . . at each polling place and in the jurisdiction as a whole.” Section 115.477.2.

The election judges must “[c]ertify in the tally book: the number of ballots cast by reconciling the ballot stubs against the number of identification certificates signed; the number of defective and spoiled ballots; the number of ballots with write—-in votes; and the number of ballots received at the polling place which were not cast at the election.” Section 115.471(1). Importantly, “[i]f the number of signed identification certificates is not the same as the number of ballots cast, the judges shall make a signed statement of the fact and the reasons therefor, if known, and shall return the statement with the statement of returns.” Id. “The final and correct return printed by the automatic tabulating equipment added to the write—-in, absentee and handcounted votes shall be the official return of each polling place and jurisdiction.” Section 115.481. “As soon as practicable after each election, the election authority shall convene a verification board to verify the count and certify the results of the election.” Section 115.497. “[T]he verification board shall meet and check the addition and figures on all tally sheets and statement of returns and shall compare its records with the returns made by the election judges and the election authority the day of the election.” Section 115.501. The verification board must then “issue a statement announcing the results of each election held within its jurisdiction and shall certify the returns to each political subdivision and special district submitting a candidate . . . at the election.” Section 115.507.1 (2006 Cum. Supp.).

Section 115.457 instructs the counting judges not to count ballots in which no judge’s initials appear, “except when it appears the absence of initials is due to mistake of the election judges and that the ballot is otherwise legal and proper.” Here, the counting judges (actually the recount team) counted the ballots; therefore, they must have decided that the exception applied.

Collins argues that Dolan, as the proponent of the non—-initialed ballots, has the burden of proof to show that the absence of the initials on the eleven ballots was due to mistake of the polling judges. We disagree. Collins has failed to consider the procedural posture before the trial court after the recount was concluded. Dolan was entitled to a recount of the ballots for the auditor race under section 115.601 because of the closeness of the vote. No proof of irregularity was required. Such a recount was ordered pursuant to sections 115.585—-115.601. Collins does not raise any issue about the propriety of ordering a recount or the procedure that was utilized. Under section 115.587, the court appointed a recount team of equal members from lists submitted by Collins and Dolan. Attorneys for each candidate were allowed to be present. It was the responsibility of the recount team to consider all of the ballots in question,(FN13) to determine whether they should or should not be counted and to make its report through Powers to the court of its findings. Each member of the team and the attorneys for the candidates were allowed to object to the determination by the recount team of whether or not a ballot should be counted. The recount team determined that each of the uninitialed ballots should be counted. Either Collins’ attorney or one of the team members she proposed challenged those determinations at the time of the recount. Collins raises no issue that the ballots are improper for any reason other than the lack of initials.

According to Section 115.587, the findings of the recount team are to be considered “prima facie evidence of the facts stated therein.” “Prima facie” as an adjective is defined as “[s]ufficient to establish a fact or raise a presumption unless disproved or rebutted (a prima facie showing) [character edited to remove HTML conflict] .” BLACK’S LAW DICTIONARY 1228 (8th ed. 1999). “Prima facie evidence” is “[e]vidence that will establish a fact or sustain a judgment unless contradictory evidence is produced.” See also Hobbs v. Dir. of Revenue, 109 S.W.3d 220, 222 (Mo.App. E.D. 2003). That the recount team decided to count the uninitialed ballots is prima facie evidence of the fact (required by section 115.587) that the lack of initials was the result of mistake. It was, therefore, sufficient to show a prima facie case for the inclusion of those ballots. A “prima facie case” is defined as “[a] party’s production of enough evidence to allow the fact—-trier to infer the fact at issue and rule in the party’s favor.” Id. at 222 n.3. This principle has been utilized in a similar manner in other situations where the legislature has used the term “prima facie evidence.” See, e.g., Stadium W. Props., L.L.C. v. Johnson, 133 S.W. 3d 128 (Mo. App. W.D. 2004) (applying section 140.460.1 to the recording of a tax deed as prima facie evidence of the regularity of the sale). We conclude, therefore, that the party challenging the counting of the uninitialed ballots by the recount team has the burden of proof. In this case the burden would be on Collins to show that the recount team erred in counting the ballots because the absence of initials was not the result of a mistake.

Collins requested discovery on this issue, which the court denied. Instead, the court issued its judgment based on the face of the ballot. We believe that the trial court erred in this respect and that Collins should have been allowed to conduct discovery on this issue.

The most obvious purpose of the initials requirement is to prevent voting fraud perpetrated in one of two ways: casting a ballot without being properly signed—-in by the polling judges, or casting more than one ballot. The statutes require the polling place judges to compare the number of signed—-in voters with the number of ballots cast to detect such possible fraud. See section 115.471. That report is to be reviewed by the election authority and was available to the recount team. That would seem to be the first avenue for Collins to seek discovery. There may be other evidence also relevant to the issue. We reject that the trial judge’s personal review of the ballots was conclusive as to the issue. Rather, it was first the recount judges who had to determine whether the absence of initials on the ballots was a mistake. Thus, the fact that they counted those ballots was prima facie evidence of mistake. The challenging party, in this case Collins, has the burden to show that the recount judges erred and should have been allowed to conduct discovery on this issue.

For the reasons stated, the determination of the trial court to count the so—-called party identification ballots is affirmed and the rest of the matter reversed and remanded for discovery by Collins on the limited issue of the non—-initialed ballots and an evidentiary hearing by the judge on that issue in accordance with the principles enunciated in this opinion.

Footnotes:

FN1. All statutory citations are to RSMo 2000 unless otherwise stated. Section 115.601.1 states that “[a]ny contestant in a primary or other election contest who was defeated by less than one percent of the votes cast for the office . . . shall have the right to a recount of the votes cast for the office.”

FN2. The court did not deem a hand recount necessary for the touch screen ballots.

FN3. “Whenever a recount is ordered pursuant to section . . . 115.601, the court . . . trying the contest shall issue a writ to each election authority responsible for conducting the election in any area in which an alleged irregularity occurred, commanding the election authority to prepare its office and all records and material relating to the contested election for the recount.” Section 115.585.1.

FN4. “Whenever a recount is ordered pursuant to section . . . 115.601, the court . . . shall determine the number of persons necessary to assist with the recount and shall appoint such persons equally from lists submitted to the court . . . by the contestant and the contestee. . . . Each recount shall be completed under the supervision of the court . . . and the persons appointed to assist with the recount shall perform such duties as the court . . . shall direct. Upon completion of any duties prescribed by the court . . . the persons appointed to assist with the recount shall make a written and signed report of their findings to the court. . . .” Section 115.587. These findings shall be prima facie evidence of the facts stated therein, but any person present at the examination of the votes may be heard as a witness to contradict the findings.” Id.

FN5. See section 115.457.

FN6. An appendix to this opinion includes one of the contested “party affiliation ballots” for illustration.

FN7. The court did not count one ballot on which only the “D” in “DEM” was colored in because it could not “ascertain what the person intended.”

FN8. Collins also argues that the Secretary of State specifically rejected a proposed regulation that would allow for counting votes with a mark on the party affiliation next to the candidate’s name. We need not answer that argument because we are bound by the statutes as well as the regulations in determining the question of voter intent.

FN9. A “marking device” is defined as “either an apparatus in which ballots are inserted and voted by use of a punch apparatus, or any approved device that will enable the votes to be counted by automatic tabulating equipment.” Section 115.013(14) (2006 Cum. Supp.).

FN10. The election judges count the write—-in votes first. Section 115.467.1.

FN11. “Automatic tabulating equipment” is defined as “the apparatus necessary to examine and automatically count votes, and the data processing machines which are used for counting votes and tabulating results.” Section 115.013(1) (2006 Cum. Supp.).

FN12. Because a hand recount was ordered, this would be all of the ballots cast in the race.

FN13. After this case was submitted for this court’s decision, Judge Breckenridge was appointed to the Supreme Court of Missouri. By special assignment, she has continued to serve as a member of this court’s panel in this case.

I’ll give you the short version of the opinion –  the trial judge correctly interpreted the disputed voter intent ballots. The trial judge should have allowed a further look at the circumstances of the ballots that were not initialed (by election judges). So, please do that.

The court opinion has an image one of the ballots from the “voter intent” part of the case available online (after the footnotes). Take a look at it. You’ll see how bogus the republican arguments were.

Rumor has it that the total of all legal bills for the parties in the case may have surpassed $250,000.00 – and now the case will go back to the trial court.

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