St. Louis Cnty. Bd. of Election Comm'rs v. McShane

• Decision Date: 07 June 2016
• Docket Number: No. ED 104196,ED 104196
• Citation: 492 S.W.3d 177
• Parties: St. Louis County Board of Election Commissioners, Lisa Ridolfi, Patrick Lynn, and Leo MacDonald, Jr., Relators, v. Hon. Maura B. McShane, Respondent.
• Court: Missouri Court of Appeals

492 S.W.3d 177

St. Louis County Board of Election Commissioners, Lisa Ridolfi, Patrick Lynn, and Leo MacDonald, Jr., Relators,

v.Hon. Maura B. McShane, Respondent.

No. ED 104196

Missouri Court of Appeals, Eastern District, WRIT DIVISION TWO .

Filed: June 7, 2016

Jane E. Dueker, John J. Coatar, Arthur D. Gregg, 1 N. Brentwood, Suite 1000, St. Louis, MO 63105, Darold E. Crotzer, Jr., Angela Bullock Gabel, 130 S. Bemiston, Suite 602, Clayton, MO 63105, for relators.

James R. Layton, P.O. Box 899, Jefferson City, MO 65102–0899, for respondent.

LAWRENCE E. MOONEY, PRESIDING JUDGE

The relators, three registered voters and the St. Louis County Board of Election Commissioners, petitioned this Court for an emergency writ of mandamus, to extend the hours of voting for two hours at certain precincts on the night of the April 5, 2016 election, due to the lack of ballots. We issued a permanent writ of mandamus with our opinion to follow. Here are the circumstances that compelled our issuance of the writ. Rule 84.24(1).

Facts

The Board, as the duly constituted election authority for St. Louis County, conducted a county-wide general municipal election on April 5, 2016. The Board relied solely on paper ballots for this election.¹ However, due to a clerical error, many precincts did not receive a sufficient number of ballots for the election. The unavailability of ballots denied eligible voters the opportunity to exercise their right to vote. Thus, in the late afternoon of April 5th, the relators petitioned the circuit court for an emergency order extending the voting hours at the affected precincts by two hours, until 9 o'clock in the evening.² The Board argued that the extended hours would allow voters to return to their polling places and vote, since the ballots had been replenished.

In seeking an extension of hours, the Board filed affidavits from three St. Louis County registered voters—Leo H. MacDonald, Jr., Lisa Ridolfi, and Terry Crow. All three avowed that they arrived at their polling location early in the morning of April 5th, but were unable to vote due to the lack of ballots. Mr. MacDonald arrived at his polling place at 8:00 a.m. He was unable to wait until a ballot arrived, because he is employed full-time. He stated, however, that extending the hours of voting would permit him to vote. Ms. Ridolfi arrived at her polling place at 6:15 a.m. At that time, there were no ballots for the election at her polling place. The election judges had already turned away approximately twenty voters by the time Ms. Ridolfi arrived, and then turned away approximately one hundred more voters between 6:15 and 10:45 a.m., all due to the lack of ballots. Mr. Crow arrived at his polling place at 5:55 a.m. At that time, the polling location had only five ballots with a certain race printed on the ballot. Mr. Crow attempted to vote at 8:00 a.m., but could not because there were no ballots. Mr. Crow observed approximately forty voters turned away from his polling place between 6:00 and 9:10 a.m. due to the lack of ballots. In all, according to the list filed with the circuit court, at least sixty-three precincts, out of a total of eight-hundred and twenty precincts, spread out over the county, did not receive an adequate number of ballots.

The Board's request for an extension of hours was bipartisan. Both the Democratic Director of Elections for the Board, Eric Fey, and the Republican Director of Elections, Gary Fuhr, filed affidavits in support of extending the voting hours. Both admitted that the Board provided an insufficient number of ballots due to a clerical error. Both agreed that voters were denied the opportunity to vote due to the lack of ballots.

In petitioning the circuit court, the Board pointed particularly to Section 115.407, the state statute prescribing the hours of voting, which directs that polls close at seven o'clock p.m. The Board argued that the statute was unconstitutional as applied to the affected precincts. The Board contended that no other adequate remedy existed, and that if Section 115.407 was strictly enforced, and the hours not extended, voters would be denied their constitutional right to vote. The Attorney General, charged with defending the statute's constitutionality, did not oppose granting relief.

The circuit court, after a hearing, denied the Board's request because it did not believe it had authority to extend the hours under Section 115.407.

The Board then petitioned this Court for a writ of mandamus directing the circuit court to order the polls open an additional two hours, until nine o'clock p.m.³ We granted the request and issued a permanent writ of mandamus. We directed the Board to extend the voting for two hours until nine o'clock that evening at the affected precincts. We further directed that the votes cast during the extended hours were provisional votes, to be sequestered from the regular votes. And we directed that the provisional voting was available only to those qualified voters who orally affirmed that they tried to vote during regular hours.

Discussion

The Missouri Constitution establishes “with unmistakable clarity that the right to vote is fundamental to Missouri citizens.” Weinschenk v. State, 203 S.W.3d 201, 211 (Mo. banc 2006). “The right to vote freely for the candidate of one's choice is of the essence of a democratic society.” Reynolds v. Sims, 377 U.S. 533, 555, 84 S.Ct. 1362, 12 L.Ed.2d 506 (1964). The Board admitted that their failure to provide sufficient number of ballots deprived voters of their constitutional right to vote. And thus they sought redress in the courts to remedy this wrong and afford those disenfranchised the opportunity to cast their vote.

This Court has the authority to “issue and determine original remedial writs.” Mo. Const. art. V, sec. 4.1; State ex rel. Isselhard v. Dolan, 465 S.W.3d 496, 498 (Mo.App.E.D.2015). We do not issue such writs lightly. A writ of mandamus is reserved for extraordinary emergencies. Isselhard, 465 S.W.3d at 498. The writ of mandamus is to be used only as a last resort, in those cases in which no adequate alternative remedy exists. State ex rel. Kelley v. Mitchell, 595 S.W.2d 261, 265–67 (Mo. banc 1980). The object of a writ of mandamus is “not to supersede but to supply the want of a legal remedy.” Kelley, 595 S.W.2d at 266–67.

In reaching our decision, we were mindful of both Section 115.407, the state statute governing hours for the polls, and the prior opinion of our court, State ex rel. Bush–Cheney 2000 Inc. v. Baker, 34 S.W.3d 410 (Mo.App.E.D.2010), in which we held that the circuit court could not extend the hours of voting established by statute. But the particular circumstances at hand compelled our decision to extend the voting hours.

Section 115.407, upon which the circuit court relied, provides:

The election judges shall open the polls at six o'clock in the morning and keep them open until seven o'clock in the evening. At seven o'clock in the evening, all voters at the polls, including any in line to vote, shall be permitted to vote.

We acknowledge that the plain language of the statute provides that the polls are to close at seven o'clock in the evening. Indeed, this language is reinforced by the seemingly absolute language of Section 115.430.14: “No state court shall have jurisdiction to extend the polling hours established by law, including section 115.407.”⁴

But we must consider these laws in the context of other election laws, caselaw, and the constitutional right to vote. We need only look as far as Section 115.024 to see that the legislature has contemplated and considered that emergencies may arise—be it from natural or man-made disasters—that may impact voting.⁵ The legislature has provided mechanisms to address those emergencies, including authorizing the election authorities to petition this Court to relocate or reschedule the election. Section 115.024.3. Correspondingly, the legislature has authorized this Court to issue orders relocating and/or rescheduling the affected election. Section 115.024.4. And the election authorities may appeal any order issued by the election panel of this Court to the Missouri Supreme Court, for an immediate hearing.⁶ Section 115.024.8. While the particular situation at hand is not a legislatively-defined “disaster,” the statute evidences the legislature's understanding that emergencies may arise. In fact, the legislature specifically authorized courts trying a contested election to order a new election if there were irregularities of sufficient magnitude to cast doubt on the validity of the initial election. Section 115.593; See, e.g., Landwersiek v. Dunivan, 147 S.W.3d 141, 149–50 (Mo.App.S.D.2004).

We also considered the nearly century-old case, State ex rel. City of Memphis v. Hackman, 273 Mo. 670, 202 S.W. 7 (1918), as support for the proposition that the statutory times for opening and closing polls may be flexible in certain circumstances. There, our Supreme Court held that the statutory time for opening polls was directory, and not mandatory, where no injury resulted from a failure to open the polls at the time designated in the statute. City of Memphis, 202 S.W. at 14. Failure to open up the polls at the time designated by statute was insufficient to vitiate the election in City of Memphis, where no harm came from the delayed opening. Id. Conversely then, there can be flexibility in the closure of the polls, when injury would result from strict compliance with the statutory time.

Bush–Cheney grew out of the presidential election in November of 2000. In that case, three Democratic Party entities and one registered voter sued the St. Louis City Board of Election Commissioners, seeking an extension of voting hours until ten o'clock p.m. in all locations.⁷ They alleged that the voter had not been able to vote and “fear[ed]” he would not be able to vote because of the long lines at the polling places/machine breakdowns that had lasted for several hours. They further alleged...