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Missouri Supreme Court hears arguments on Sunshine Law, absentee ballots

The Missouri Supreme Court on Oct. 2 grappled with an ambiguous part of the Sunshine Law pertaining to the public release of absentee ballot materials.

The high court heard oral arguments in the case involving Bruce Franks Jr., the outgoing state representative for District 78 in St. Louis, and his victory in the August 2016 Democratic primary over longtime incumbent Penny Hubbard.

In that race, Hubbard initially beat Franks by 90 votes after obtaining a large number of absentee votes. To determine if those absentee votes were fraudulent, Frank’s attorney, David Roland, used a lawsuit filed earlier under the Sunshine Law to convince a St. Louis circuit judge to order the Board of Election Commissioners for the City of St. Louis to release the absentee-ballot materials. Franks then used those materials to sue for a new election, arguing that the board had not properly handled the ballots. A judge ordered a new election, and Franks won.

The Sunshine lawsuit, however, is still pending. It already has been heard by the Court of Appeals Eastern District, which concluded in February that access to election records is of “general public interest and importance” and that the same issues are “likely to reoccur in our trial courts.”

At oral argument, Roland, an attorney with the libertarian-leaning Freedom Center, represented himself as the plaintiff. James C. Hetlage of Lashly & Baer represented the Board of Election Commissioners for the City of St. Louis.

During the 43-minute oral argument, the longest exchange related to the statute in question.

It holds that in the run-up to an election, the election boards in the state’s major municipalities will accept absentee-voter applications. These include an applicant’s home address, his or her reason for wanting to vote absentee and other information.

Meanwhile, each board also must create a running list of those applications, setting out every applicant’s name, voting address and mailing address. Up until 8 a.m. on the Friday immediately preceding the election, the board must keep confidential the applications, any information in them and the running list. After that precise hour, though, the statute mandates that the lists be released but only to certain authorized persons, such as campaign workers.

The statute addresses only what should happen with the lists after 8 a.m.; it is silent, however, on what should happen with the applications themselves, which contain more information.

The circuit judge found, and Roland maintains, that the legislature’s silence means that the applications should be released.

Hetlage argued to the high court, however, that this interpretation leads to an “absurd result” whereby the board restricts the lists on the one hand, but on the other releases the applications, which contain even greater detail.

During a nearly 12-minute exchange, Judge Patricia Breckenridge and Judge Laura Denvir Stith pressed Roland on why the legislature would have written the law the way it did.

Roland seemed to recognize the outcome as odd, saying that “we have no idea why the legislature chose this policy,” but that the Sunshine Law requires that if any statute providing an exception to the release of records can reasonably be interpreted to allow for transparency, that’s the way the court must read it.

The case is Roland v. St. Louis City Board of Election Commissioners et al., SC97781.