Marre v. Reed

• Decision Date: 08 September 1989
• Docket Number: No. 71235,71235
• Citation: 775 S.W.2d 951
• Parties: Gabriel "Steve" MARRE, Contestant-Respondent, v. Ronald Francis REED, Contestee-Appellant.
• Court: Missouri Supreme Court

Page 951

775 S.W.2d 951

Gabriel "Steve" MARRE, Contestant-Respondent, v. Ronald Francis REED, Contestee-Appellant.

No. 71235.

Supreme Court of Missouri,

En Banc.

Sept. 8, 1989.

Jonathan L. Downard, Union, for contestee-appellant.

Frank K. Carlson, Union, for contestant-respondent.

RENDLEN, Judge.

Contestee Ronald Francis Reed appeals from a judgment ordering a new election after contestant Marre successfully challenged the correctness of returns for the April 5, 1988 election for the office of Marshal of the City of Pacific pursuant to § 115.553.1, RSMo 1986. The Court of Appeals, Eastern District, reversed the trial court's judgment, citing Whitener v. Turnbeau, 602 S.W.2d 890 (Mo.App.1980). Here, on transfer, the case is decided as though on original appeal. Mo. Const. art. V, § 10. We affirm.

The City of Pacific is located in the Counties of Franklin and St. Louis, and the election authorities of those counties certified that Reed, the incumbent, received 434 votes to Marre's 423 in the April 5, 1988 election for marshal. Marre's timely challenge, filed April 22, 1988, ¹ in the Circuit Court of Franklin County, alleged various irregularities in the election, including the participation of "[a]t least fourteen (14) people who were not qualified to vote in the municipal elections in Pacific [but] were registered and allowed to vote...." Following an evidentiary hearing, the trial court found "irregularities of sufficient magnitude to cast doubt on the validity of the election" and ordered a new election for the contested office. The court further stated that the irregularities necessitating the order "consist[ed] solely of votes cast by persons in the initial election who were not qualified to vote therein[,]" and listed the names of eleven voters found to be ineligible. The court of appeals reversed, holding that voter qualifications may not be challenged under § 115.553.1, RSMo 1986.

On appeal, Reed asserts the trial court erred in considering the qualifications of voters in this proceeding. In reviewing the judgment, we are mindful that the decision of the trial court must be affirmed unless there is no substantial evidence to support it, unless it is against the weight of the evidence, or unless it erroneously declares or applies the law. Barks v. Turnbeau, 573 S.W.2d 677, 679 (Mo.App.1978). This Court recently discussed the importance of Chapter 115, RSMo, noting:

A general election contest challenges the validity of the very process by which we govern ourselves; it alleges that through an irregularity in the conduct of an election, the officially announced winner did not receive the votes of a majority of the electorate. That the General Assembly need not permit election contests is beyond cavil. But by allowing election contests, the General Assembly has determined that the accuracy of election results is a matter of significant importance to our democratic process.

If as a result of election irregularities the wrong candidate is declared the winner, more is at stake than the losing candidate's disappointment; the people have lost the ability to impose their will through the electoral process. Thus to claim that a general election contest is no more than an adversary proceeding between a losing candidate and the officially announced winner is to misunderstand the raison d'etre of election contests and to discount the importance the legislature has placed on accuracy in elections. An election contest ... is an action by which the contestant challenges the conduct of the election itself. In bringing an election contest, the contestant speaks for the entire electorate, seeking to assure all that the democratic process has functioned properly and that the voters' will is done.

Foster v. Evert, 751 S.W.2d 42, 43-44 (Mo. banc 1988).

Against this background we examine the specific sections of Chapter 115 implicated here. Section 115.553.1 provides:

Any candidate for election to any office may challenge the correctness of the returns for the office, charging that irregularities occurred in the election.

(Emphasis ours.) Section 115.593 states in pertinent part:

New election ordered, when.--If the court ... determines there were irregularities of sufficient magnitude to cast doubt on the validity of the initial election, it may order a new election for the contested office or on the contested question....

(Emphasis ours.)

The term "irregularities," utilized in both § 115.553.1 and § 115.593, is not specifically defined in Chapter 115. The court of appeals concluded improper qualification of a voter is not an "irregularity" within the meaning of the contest statutes, relying principally on Whitener, 602 S.W.2d at 890. In that case, decided shortly after enactment of the Comprehensive Election Act of 1977, the court of appeals held that qualifications of voters may not be "collaterally" attacked in a contest proceeding, finding Kramer v. Dodson, 543 S.W.2d 792 (Mo.App.1976), still viable although decided prior to the 1977 revision of the election statutes. In so doing the court noted that, like the statute in Kramer, Chapter 115 contains a comprehensive scheme for purging voter registration rolls prior to elections, and reasoned that "an attack on voter qualifications should be made at the polls in accordance with statute, and ... judicial attack is impermissible." Id. at 893.

In that respect Kramer and Whitener place great stock on quick and certain resolution of election contests as against the quest for fair and accurate results. This is contrary to the determination of the General Assembly, reflected in Chapter 115 and discussed in Foster, 751 S.W.2d at 43, that "the accuracy of election results is a matter of significant importance to our democratic process." Id. Kramer and Whitener do not analyze the impact of voting by those not qualified to cast a ballot on the accuracy of reported election results, nor do they discuss its significance as an "irregularity"; rather, they conclude that challenges to voter qualification should be made prior to the election. However, ballots cast by those who are not qualified to vote contaminate the reported results and if such votes cannot be challenged in an election contest then the election contest will not "assure all that the democratic process has functioned properly and that the voters' will is done." ² Foster, 751 S.W.2d at 44. Thus, to that extent Kramer and Whitener are contrary to the spirit of Chapter 115 and this Court's decision in Foster, and they do not control the question presented here.

We need not base our resolution of this issue, however, solely on such matters of policy. Section 115.585.2, which is not mentioned in the Kramer or Whitener opinions, provides a more specific statutory basis for concluding "irregularities," as used in the election contest statutes, encompasses votes cast by unqualified voters. That section provides:

2. Whenever a recount is ordered pursuant to section 115.583 or 115.601, the court or legislative body shall have authority to pass upon the form and determine the legality of the votes brought into question and to determine the qualifications of any voter whose vote is brought into question, provided that the name of a voter upon a precinct register for the polling place shall be prima facie evidence of the proper qualifications of the voter.... No votes of any person found by the court to be unqualified to vote at the election shall be counted.

(Emphasis ours.) While this section pertains to recounts, and not specifically to § 115.593, involving new elections, it refutes the argument that voter qualifications must be challenged prior to the election. ³ Furthermore, § 115.583, like § 115.593, refers to "irregularities." Related clauses are to be considered when construing a particular portion of a statute, State v. Campbell, 564 S.W.2d 867, 869 (Mo. banc 1978), and we believe that the term "irregularities" has essentially the same meaning in § 115.583 as it does in § 115.593. Because voting by unqualified voters is an irregularity examined by the court in conducting a recount, it follows that such an irregularity may be considered in determining whether a new election should be ordered. Whitener and Kramer, to the extent they are inconsistent with this conclusion, should not be followed.

Having found that the trial court acted within its statutory authority when scrutinizing the qualifications of voters in this proceeding, we turn to the question of whether there are "irregularities of sufficient magnitude to cast doubt on the validity of the initial election (emphasis added)," § 115.593, when a number of voters are found to be disqualified and that number equals or exceeds the margin of the apparent victor. This requires an examination of the statutory language to determine the legislative intent.

The "new election" statute provides a new election may be ordered when "there were irregularities of sufficient magnitude to cast doubt on the validity of the initial election (emphasis added)." § 115.593. The "recount" statute contains similar language: if "there is a prima facie showing of irregularities which place the result of any contested election in doubt (emphasis added)," a recount of the votes may be ordered. § 115.583. The latter section declares that "[w]here the issue is drawn over the validity of certain votes cast, a prima facie case is made if the validity of a number of votes equal to or greater than the margin of defeat is placed in doubt (emphasis added)." Without question the legislature intended that when the validity of a number of votes equal to or greater than the margin of defeat is placed in doubt, then the election result is cast in doubt and a prima facie case is made justifying a recount under § 115.583. By the same token such finding constitutes "irregularities of sufficient magnitude to cast doubt on the validity of the initial election" justifying a new election under §...