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By stan_sipple

Who said getting rid of Florida-style "butterfly" ballots would end election contests? Missouri Court of Appeals Western District rejects incumbent's challenge to losing race for Johnson County Auditor by three votes but allows discovery on why some ballots lacked judges' initials. C. Kay Dolan, Respondent, and Monica Penrose, Plaintiff, v. Gilbert Powers, Defendant, and Teresa A. Collins, Appellant and Lynn Stoppy Brackin, Defendant.
Case Number: WD68098 Handdown Date: 01/29/2008 Appeal From: Circuit Court of Johnson County, Hon. John R. O'Malley, Judge
The Republican candidate first won the election by four votes. Following a recount the Democrat led by three votes. The county used fill-in-the-blank ballots for optical scanning. During the recount the election judges counted several ballots on which the voter had marked the candidate's party affiliation as a vote for the candidate. Also the election judges counted several ballots that lacked the initials of election judges. Missouri court of appeals western district affirms trial court ruling to allow the ballots with the stray marks, but remands for discovery on the ballots lacking the judges' initials. "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.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.

Full post as published by Showmeblawgs on February 02, 2008 (boomark / email).