ST. LOUIS – A verdict expected from St. Louis Circuit Judge Rex Burlison either today or Tuesday could determine whether or not a new election is held in the race for state representative in the 78th District.
Bruce Franks challenged three-term incumbent Rep. Penny Hubbard, D-St. Louis, and lost by just 90 votes, but allegations of absentee voter fraud have seen Franks and his attorney David Roland sue for a new election. Attorney Jane Dueker and Rep. Mike Colona, co-counsel for Hubbard, argued Wednesday and Tuesday that the representative and her campaign did nothing illegal.
Politicos have waited with bated breath Friday to see the verdict because it may determine exactly who stands for the 78th on the House floor.
If Hubbard prevails, there is no new election and she serves her fourth and final term in the House for two more years.
If Burlison rules in favor of Franks, then it gets interesting.
The civil lawsuit
First of all, an attorney for the St. Louis Election Board said a verdict must come down by Tuesday morning or else the St. Louis Election Board will not have the proper amount of time to hold and prepare for an election. That specific amount of time is because of Missouri law.
RS Mo. 115.549 says if a judge finds enough irregularities in the case of a contested primary the new election must take place at a certain time. “The order shall set the date of the election, which shall not be less than fourteen or more than thirty days after the order is issued, and shall be sent by the clerk of the court to each election authority responsible for conducting the special election.” With a ruling on Sept. 2, the new election could take place anywhere from Sept. 16 to Oct. 2. If the verdict comes down Tuesday morning Sept. 6, that date shifts to Sept. 22 to Oct. 6.
However, an issue or person can only go on the ballot at least six weeks before an election. Six weeks before the general election is Sept. 27, which makes a tight window for the election date to be set, especially if the verdict does not come down Friday. In his lawsuit, Franks originally asked for the new election to be held Sept. 12.
Secretary of State investigation
What may supercede all of that is an investigation by Secretary of State Jason Kander’s office. A report on the investigation from Kander’s office may find that Hubbard committed election offenses as outlined in Chapter 115 and would offer a probable cause statement. That statement then goes to a prosecuting attorney who can bring those charges against the her in a court of law.
If that happens, the case could be tied up in the courts again, but Kander’s office has what appears to be unlimited time to make a decision.
A grand jury
St. Louis Election Board Chairwoman Joan Burger also said Wednesday during the trial that St. Louis Circuit Attorney Jennifer Joyce would use a grand jury to determine whether or not criminal charges should be filed in the case. The current case is just a civil suit. Joyce has kept mum on her methods, but a grand jury can meet for as many as three months, two or three times per week. If that trial happens, it is completely independent on the current civil case, and the verdict could come down well after even the general election, if Joyce decides the charges warrant further investigation.
Depending on how this situation unfolds, it could bring Missouri election law into uncharted waters.
