State ex rel. Kirkpatrick v. Board of Election Com'rs of St. Louis County, WD36153

• Decision Date: 26 February 1985
• Docket Number: No. WD36153,WD36153
• Citation: State ex rel. Kirkpatrick v. Board of Election Com'rs of St. Louis County, 686 S.W.2d 888 (Mo. App. 1985)
• Parties: STATE of Missouri, ex rel. James C. KIRKPATRICK, Plaintiff-Respondent, v. The BOARD OF ELECTION COMMISSIONERS OF ST. LOUIS COUNTY, Missouri, Defendant-Appellant, and John Fox Arnold and Al Bauer, Defendants-Intervenors-Appellants.
• Court: Missouri Court of Appeals

Page 888

686 S.W.2d 888

STATE of Missouri, ex rel. James C. KIRKPATRICK, Plaintiff-Respondent, v. The BOARD OF ELECTION COMMISSIONERS OF ST. LOUIS COUNTY Missouri, Defendant-Appellant and John Fox Arnold and Al Bauer, Defendants-Intervenors-Appellants.

No. WD36153.

Missouri Court of Appeals Western District.

Feb. 26, 1985.

Curtis, Bamburg & Crossen by Kenneth M. Romines, St. Louis, for defendant-appellant.

John Ashcroft, Atty. Gen., Jefferson City, Bruce Farmer, Asst. Atty. Gen., for plaintiff-respondent.

Before PRITCHARD, J., P., and SHANGLER and DIXON, JJ.

DIXON, Judge.

Secretary of State Kirkpatrick as plaintiff filed a suit in declaratory judgment and for injunction. The individual defendants intervened and all parties filed motions for summary judgment. The court sustained the Secretary's motion, and the Board and Intervenors appeal.

The issue is whether the Secretary may require by regulation, and in turn the court by its decree, that a ballot label and ballot card contain only the names of candidates of one political party and further require that polling booths be identified by party label in primary elections.

At the threshold of this appeal is an issue of mootness. The suit was filed prior to the 1984 primary election and as to the 1984 primary, the issues are moot. The issues may recur in other elections in St. Louis County and may arise in other areas of the state. In view of the continuing viability of the issues, the case will be determined despite the mootness of the issue as to the particular election. State ex rel. Donnell v. Searcy, 347 Mo. 1052, 1059, 152 S.W.2d 8, 10 (banc 1941); State ex rel. Hooker v. City of St. Charles, 668 S.W.2d 641, 643 (Mo.App.1984); State ex rel. Southwestern Bell Telephone Co. v. Public Service Comm'n of Missouri, 645 S.W.2d 44, 51 (Mo.App.1982).

The dispute arises from the mechanisms utilized by the Board in the conduct of primary elections. The papers and the paraphernalia utilized in the primary election process have been filed as an exhibit in this court. When the voter presents himself or herself to the election judges and is identified as an eligible voter, the procedure requires that the voter identify the ballot for the primary election in which the vote is to be cast. The voter may choose the Democratic, Republican ballot, or where such ballots are available, the ballot of the independent or other recognized party participating in the primary election. When the voter has made the selection, the judges of the election deliver to the voter a "ballot card." This ballot card is color coded to indicate the party affiliation but otherwise contains no meaningful information. It contains only rows of numbers, each of which is positioned upon a round, partly-punched section of the card. Under the procedures here in question, the voter then repairs to any of the voting booths and is confronted with a plasticized booklet denominated the "ballot label." The voter is instructed to place the ballot card in a slot provided under the "ballot label." Alignment of the card is accomplished by inserting the upper end of the "ballot card" over posts affixed to the device. The booklet that is the "ballot label" is affixed to the device so that it is positioned above the ballot card in alignment with the "ballot card." The pages of the "ballot label" contain the names of the candidates for each office on a separate page. In the instance of the disputed procedures, this "ballot label" contains in sections the names of the candidates for each party participating in the election. ¹

The voter accomplishes his or her voting selection by turning to the appropriate page for the office to be voted and inserting a small stylus in the hole provided in the "ballot label" beside the chosen candidate's name. This causes the stylus to complete the punch out of a "hole" and number in the "ballot card." The voter, after completion of the voting, removes the "ballot card" and places it in a folder provided. Protruding from the folder is an identifying "tag." This "tag" is perforated to permit its removal by the election official in charge of the ballot box, the "tag" is retained as part of the election records. The "tag" is the same color as the "ballot card." The vote is tabulated by inserting the remaining portion of the "ballot cards" in a device that "counts" a vote for each perforation appearing in the "ballot card." Each perforation is designated for a specific candidate, and no other. The dispute in the instant case centers upon the universal character of the "ballot label" containing the names of the candidates of all parties in the primary election. There is no question but what a voter may roam over the whole field of candidates in all of the parties and punch a hole beside the names of candidates in the same race in different parties. Also, the process permits the voter to vote in different party primaries for different candidates. The stipulation of facts is less than explicit as to the effect of such actions by voters. The stipulation in relevant part states:

20. The system in St. Louis County, Missouri, at primary elections, is set to reject the vote, except write-in votes, for any office and on any question when the number of votes exceeds the number of votes a voter is lawfully entitled to cast.

* * *

23. The system in St. Louis County, Missouri, at primary elections, uses automatic tabulating equipment that will reject each ballot on which a voter has voted for candidates of more than one party, by not counting a vote punched in punch positions other than the party designated by the voter in advance to an election judge.

(Emphasis added.)

From that stipulation and the response to the court's inquiries during the oral argument, it appears that the mechanical counting device excludes only the vote for the candidate of a party different than the ballot card utilized. If the voter has made multiple choices for the same office, the choice for the office, appropriate to the ballot card used, will be counted and only the choice for candidate of the other party will be rejected. If the voter has made choices for different offices in different primaries, only the votes in the primary selected by the voter will be counted.

The Secretary filed a petition in the Cole County Circuit Court for declaratory judgment and a permanent injunction. He asked that the Board be required to label the polling booths by political party affiliation and that separate ballot labels be provided, each containing the names of only one political party, otherwise he would not certify the St. Louis County August 1984 primary election results, asserting they would be in contravention of Chapter 115 RSMo 1978. John Arnold and Al Bauer, voters in St. Louis County and members of the Board, then asked and were granted permission to enter the suit as defendants-intervenors, alleging the result of sustaining Kirkpatrick's argument would be to destroy the constitutionally and statutorily mandated secrecy of their vote. After entering into the stipulation of fact, the parties filed cross-motions for summary judgment. On July 13, Judge Kinder sustained the Secretary's motion and entered an order for declaratory judgment and permanent injunction, requiring that the Board provide separate voting devices for each political party or ticket offering candidates at the primary election and that voters be supplied with a ballot label containing the names of only those candidates of the political party the voter had previously designated. On July 27, the Board and defendants-intervenors' petitions for a writ of prohibition or a stay of injunction, filed in both this court and the Supreme Court, were denied. The Board and intervenors have appealed from the judgment of the circuit court.

The manner in which the joint brief of appellants has been framed makes it difficult to determine the issues posed. The appellant-intervenors set forth in the brief a point with four subpoints. The appellant Board repeats the point and subpoint in exactly the same language. The point is as follows:

THE TRIAL COURT ERRED IN GRANTING SUMMARY JUDGMENT TO RESPONDENT AS TO DEFENDANT-INTERVENORS ARNOLD AND BAUER [AND DEFENDANT BOARD] IN THAT:

(A) The trial court's decree was without substantial evidence to support its conclusion that defendant-intervenors were obligated ... to make a public demonstration of their partisan party preference before other voters ...;

(B) The trial court's decree was against the weight of the evidence to support the granting of summary judgment in that the evidence showed that the manner in which partisan primaries are conducted in St. Louis County, Missouri, complied with the election laws by not compelling voters to vote in polling booths labeled Republican, Democrat, and non-partisan;

(C) The trial court's decree erroneously declared the law by holding that the manner in which partisan primaries are conducted in St. Louis County, Missouri violated §§ 115.225, 115.229, 115.395 and 115.397 RSMo, 1978, as amended.

(D) The trial court's decree erroneously applies the law to a factual circumstance which in all respects complied with the election laws of the State of Missouri, and specifically complied with §§ 115.225, 115.229, 115.395 and 115.397.

Subsections A and B do not raise any issue properly reviewable where a motion for summary judgment has been sustained. The evidentiary review of a court-tried case under Murphy v. Carron, 536 S.W.2d 30 (Mo. banc 1976), is not involved in the review required in a case where summary judgment is granted. Review of a summary judgment is a two-step process, first, a determination that there is no genuine issue of fact requiring trial; second, that the judgment is correct as a matter of law. Kaufman v. Bormaster, 599 S.W.2d 35 (Mo.App.1980); Brooks v. Cooksey, 427 S.W.2d 498 (Mo.1968). The record in this case has been examined meticulously and no issue of fact...