GARY D. WITT, Judge.
This is an election contest that arises out of the August 3, 2010 Primary Election to determine the Democratic candidate for the office of State Representative. Will Royster, a Democratic candidate for office of the State Representative for the 40th Legislative District, sued John J. Rizzo, also a Democratic candidate for the office, the Kansas City Election Board, and the Missouri Secretary of State.
After a trial on the merits of Royster's claims, the trial court denied all requested relief. For all of the reasons set forth herein, we affirm.
It is not disputed that the result in this election was very close. On August 16, 2010, the Kansas City Election Board ("Board") certified the results of the election to be 667 votes for Rizzo and 664 votes for Royster. Thereafter, the Missouri Secretary of State ("Secretary") announced the Official Election Returns by the Board of State Canvassers for the Primary Election, which included the tally of the votes for the instant office that was identical to the Board's vote count.
On August 24, 2010, Royster filed an election contest, and also requested the Secretary to conduct an automatic recount pursuant to Section 115.601.
On August 24, 2010, Royster filed his Verified Petition to Contest Election in the Jackson County Circuit Court, and the First Amended Petition was filed on September 7, 2010. In his Amended Petition, Royster alleged a variety of voting irregularities that he claimed were in violation of Missouri state law. Specifically, Royster alleged, inter alia, that non-English speaking voters were improperly assisted or instructed on how to vote at two polling locations, that improper electioneering occurred at one polling location, that certain precincts were improperly consolidated into a single polling place, and that other voting formalities required by state law were not followed during the election. Furthermore, the Petition contained the following three counts seeking relief: Count I (Request For Recount Due To Irregularities); Count II (New Election); Count III (Request For Recount Because Of Less Than One Percent Difference In Vote).
On August 30, 2010, the trial court issued its Order To Unseal Ballots and Protective Order, which permitted "the parties to review and inspect confidential information related to the Election Contest." Royster also engaged in discovery in preparation for the trial on the claims contained in his Petition.
On September 7, 2010, a bench trial was held. Upon conclusion of the evidence, the trial court announced from the bench that it was not going to order a new primary election and took the matter under advisement for preparation of a judgment.
On September 14, 2010, the trial court granted Royster's motion to reopen the evidence prior to entering a final judgment, and Royster was allowed to present additional evidence. Thereafter, the trial court issued its Judgment, denying all of Royster's claims and requested relief.
The trial court on September 15, 2010, then issued its Amended Judgment, which clarified "that this judgment is final for all purposes and ripe for immediate appeal without a thirty day waiting period." Royster now appeals.
Royster focuses most of his arguments on alleged irregularities at two polling places, namely Garfield Elementary School
Section 115.551 vests this Court with the authority to hear the instant appeal. The parties do not dispute that our applicable standard of review is governed by Murphy v. Carron, 536 S.W.2d 30, 32 (Mo. banc 1976), and that, therefore, the judgment of the trial court should be affirmed unless there is no substantial evidence to support it, it is against the weight of the evidence, or the trial court erroneously declared or applied the law.
Royster raises four Points Relied On in this appeal, but the thrust of each one "is whether or not the trial court erred when it found that the irregularities that developed during the August 3, 2010, primary election were not of sufficient magnitude under Missouri law to warrant a new election under Section 115 RSMo., or even a recount under Section 115.539, RSMo."
The right to vote is protected by the Equal Protection Clause of the Fourteenth Amendment and "`is subject to the imposition of state standards which are not discriminatory and which do not contravene any restriction that Congress, acting pursuant to its constitutional powers, has imposed.'" Harper v. Va. State Bd. of Elections, 383 U.S. 663, 665, 86 S.Ct. 1079, 16 L.Ed.2d 169 (1966) (quoting Lassiter v. Northampton Cnty. Bd. of Elections, 360 U.S. 45, 51, 79 S.Ct. 985, 3 L.Ed.2d 1072 (1959)).
Moreover, 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). Indeed, "[d]ue to the more expansive and concrete protections of the right to vote under the Missouri Constitution, voting rights are an area where our state constitution provides greater protection than its federal counterpart." Id. at 212.
At the outset, we must reject the contention by the Board that the issues involved in this appeal are moot. "`With regard to justiciability, a case is moot if a judgment rendered has no practical effect upon an existent controversy.'" State ex rel. Chastain v. City of Kansas City, 968 S.W.2d 232, 237 (Mo.App. W.D.1998) (quoting Gilroy-Sims & Assocs. v. City of St. Louis, 697 S.W.2d 567, 569 (Mo.App. E.D. 1985)). "`The existence of an actual and vital controversy susceptible of some relief is essential to appellate jurisdiction.'" Hall v. Mo. Bd. of Prob. & Parole, 10 S.W.3d 540, 545 n. 3 (Mo.App. W.D.1999) (quoting Armstrong v. Elmore, 990 S.W.2d 62, 64 (Mo.App. W.D.1999)). "Because mootness implicates the justiciability of a case, the court may dismiss a case for mootness sua sponte." Chastain, 968 S.W.2d at 237. "We do not decide questions of law disconnected from the granting of actual relief." Id.
Were this Court to order a new primary election pursuant to Section 115.549 contemporaneously with this order, there would be sufficient time for this election to occur prior to the general election on November 2, 2010. "There is no doubt the legislature in the comprehensive Election Act intended primary election contests to be fully decided prior to the general election." Black v. Bockenkamp, 607 S.W.2d 176, 177-78 (Mo.App. E.D.1980). All that is required in ordering a new election pursuant to Section 115.549 is that the election take place not less than fourteen days or more than thirty days after ordered, and sometime prior to the general election.
We understand the Board's arguments that ordering a new primary election would have collateral consequences pertaining to certain individuals' right to vote, for example, in an absentee fashion. But these arguments go not to the core of whether there is an issue in controversy but, rather, to how the appropriate relief would be effectuated. Thus, this has no bearing on our analysis of the mootness issue. Ultimately, because we conclude that the trial court did not err in refusing to order a new election in this matter, we need not reach these various issues regarding what rights might be implicated were a new election to be ordered in this matter.
In rejecting Royster's requested relief of a second recount of the election, the trial court made the following findings of fact and conclusions of law:
Royster does not challenge any of the above findings or conclusions, yet he still persists in arguing that a recount is currently a viable basis for relief and that the trial court somehow erred in denying such a recount. Royster argues that "[t]he only practical remedies are a new election or a hand recount with directions to eliminate all defective ballots."
Royster's argument is flawed because it fails to take into account the fact Missouri law provides that he is entitled to only one recount in this context. See Section 115.601.5 ("For purposes of this section, `recount' means one additional counting of all votes counted for the office or on the question with respect to which the recount is requested.").
While he suggests that he is entitled to a "hand recount with directions to eliminate all defective ballots," Royster fails to cite any authority that supports the contention that the trial court erred in refusing to grant such a recount under the present circumstances. Section 115.539 states that the circuit court is allowed to order a recount of votes in the following situation:
But here Royster ignores the relevant findings of fact, outlined in detail below, that determined that he failed to make a "prima facie case" for a recount because he did not demonstrate that "the validity of a number of votes equal to or greater than the margin of defeat is placed in doubt." Id. These findings and conclusions are as follows:
The court could reasonably find that there was no misconduct by any voter. Also, we believe the court could reasonably conclude that the evidence fails to show that there was any fraud practiced as to even one vote. Royster has failed to make any showing that would demonstrate that among the votes cast, any specific vote was cast or failed to be cast by some specific wrongdoing. For example, in a case such as this with a margin of victory of only one vote, had Royster presented evidence (which the trial court found credible) that one specific non-registered voter was allowed to vote or one registered voter was denied the right to vote, we would be more persuaded that Royster had made the requisite showing pursuant to Section 115.539. Because he has failed to make such a showing and because he has already had one recount, we affirm the trial court's denial of a recount of the votes in question.
Royster brings four Points Relied On, all of which ultimately argue that the trial court erred in failing to order a new primary election. Accordingly, we must outline the overarching legal principles that apply to all of these issues that seek the same ultimate relief. Section 115.549 states the following:
Id. (emphasis added).
The Missouri Supreme Court has repeatedly made clear that a new election is a "drastic remedy." Bd. of Election Comm'rs of St. Louis Cnty. v. Knipp, 784 S.W.2d 797, 798 (Mo. banc 1990); see also Kasten v. Guth, 395 S.W.2d 433, 435 (Mo. banc 1965). A new election "is appropriate [only] where the validity of the entire election is under suspicion" because a "new election tosses aside the aggregate of the citizens' votes, both those properly and improperly cast." Knipp, 784 S.W.2d at 798; see also Gerrard v. Bd. of Election Comm'rs, 913 S.W.2d 88, 90 (Mo.App. E.D. 1995) ("Only when the trial court is firmly convinced irregularities affected the outcome of the election should an election be voided.").
Royster fails to acknowledge and seems to take issue with the above bedrock principles in this well-established area of law. Rather, Royster urges a novel theory on
Bowers v. Smith, 17 S.W. 761, 762-63 (Mo. 1891) (emphasis added and citations omitted).
It goes without saying that certain laws, such as those ensuring that only registered voters are allowed to vote, are of such a nature that any violation may be deemed "fatal," and therefore, "courts enforce it to the letter." Kasten, 395 S.W.2d at 435; see also Zeiler v. Chapman, 54 Mo. 502 (1874). Such fatal violations are rare because to hold otherwise "would permit the disfranchisement of large bodies of voters, because of an error of a single official." Kasten, 395 S.W.2d at 435 (quotation omitted). "The well-established rule, here applicable, is that an election irregularity is not fatal to the validity of the whole return of the precinct unless made so by the statute on the subject or unless the irregularity is such as probably prevented a free and full expression of the popular will." Id. (quotation omitted). "As a general rule an election will not be annulled even if certain provisions of the law regarding elections have not been strictly followed in the absence of fraud." Armantrout v. Bohon, 349 Mo. 667, 162 S.W.2d 867, 871 (1942).
With these principles in mind, we now turn to the specific claims raised by Royster on appeal in order to determine whether the trial court erred in refusing to grant a new election in this matter.
Royster makes several different arguments in this Point, but the principal argument is that certain non-English speaking voters were improperly assisted by other individuals (interpreters) in casting their votes at the two aforementioned polling places. Section 115.445.3 provides that voters who have certain limitations or disabilities may be assisted in voting by another person:
Id. (emphasis added).
In its judgment, the trial court made the following findings of fact that Section 115.445.3 was not followed in this election as it pertained to some non-English speaking voters. Specifically, the trial court made the following findings as it pertained to the Garfield Elementary School Polling Place:
(Emphasis added.)
Moreover, the trial court made the following similar findings as it pertained to the Kansas City Museum Polling Place:
In attacking the trial court's judgment, Royster does not dispute that there was substantial evidence for the trial court to reach all of the above, relevant factual findings. Instead, Royster highlights evidence presented at trial and assumes that the trial court was compelled to believe the substance of the testimony of every witness who testified. All of these arguments ignore that "[t]he trial court is free to believe or disbelieve all, part or none of the testimony of any witness." Sch. Dist. of Kansas City v. State, 317 S.W.3d 599, 604 (Mo. banc 2010) (quotation omitted). "When determining the sufficiency of the evidence, an appellate court will accept as true the evidence and inferences from the evidence that are favorable to the trial court's decree and disregard all contrary evidence." Id. (quotation omitted).
The relevant question on appeal is if the facts found by the trial court rise to the level that required the court to order a new primary election as a matter of law. In ruling that the above circumstances did not require a new primary election, the trial court made the following legal conclusions:
(Emphasis added.)
Simply put, we believe that Royster has failed to demonstrate that the findings of fact and legal conclusions of the trial court are erroneous, and therefore he is not entitled to a new election as a matter of law. While he suggests that "[n]o less than eight (8) statutes, most of which are mandatory, come into play in this contest," he has failed to make the requisite showing that the violation of any of these statutes requires a new election. In fact, we believe that based on the trial court's factual findings, to which we must defer, only two pertinent statutes were shown by Royster to have been violated in this election pursuant to the arguments made in this Point.
As discussed already at length, the trial court found that certain non-English speaking voters failed to take the requisite oath pursuant to Section 115.445.3 prior to receiving assistance in casting their vote. Critically, however, Royster has failed to demonstrate that the trial court erred in concluding that all of these voters were registered and voted for whom the individual chose without any illegal or fraudulent interference.
Royster makes several different legal arguments in an attempt to illustrate
Royster also criticizes the trial court for seeming "to believe that a requirement of actual fraud should be superimposed on elections as a condition to granting a new election or recount," but this argument ignores that the Missouri Supreme Court has repeatedly held that whether fraud occurred is a relevant consideration prior to ordering a new election. "While the irregularities referred to should not be encouraged, they were not sufficient to constitute fraud, and in the absence of fraud we will not deprive the voters of their votes." Kasten v. Guth, 395 S.W.2d 433, 436 (Mo.1965). As was previously pointed out the general rule is that an election will not be annulled in the absence of fraud, even if some technical provisions of the law are not strictly followed. Armantrout v. Bohon, 349 Mo. 667, 162 S.W.2d 867, 871 (1942).
In a further attempt to demonstrate reversible error, Royster relies on statutes that are not at issue in the instant appeal. Specifically, Royster cites Section 115.291, which pertains to absentee ballots. We fail to see the relevance of this statute because no absentee ballots are at issue in the instant election, and as outlined above, our analysis is constrained only to those specific statutes called into question by the voting irregularity at issue. See Kasten, 395 S.W.2d at 435.
The two predominant cases relied on by Royster in this Point can be easily distinguished because in both cases this Court affirmed the finding of the trial court that the election in question was plagued by the failure to follow the applicable election laws. Barks v. Turnbeau, 573 S.W.2d 677, 682 (Mo.App.1978) ("The irregularities here were more than petty procedural infirmities but abuses of the election law which cannot be ignored."); see also Elliott v. Hogan, 315 S.W.2d 840, 842 (Mo. App.1958). This simply highlights the deference we owe to the trial court in making this ultimate finding. In highlighting these cases, and indeed in his entire argument, Royster fails to analyze or give meaning to the critical language in Section 115.549 that states "[i]f any court trying a contested primary election determines there were irregularities of sufficient magnitude to cast doubt on the validity of the initial election, it may order a new primary election for the contested office." Id. (emphasis added). Here, Royster has simply failed to demonstrate that the trial court erred in concluding that the irregularities in question were not of a sufficient magnitude to warrant ordering a new election. See Black v. Bockenkamp, 607 S.W.2d 176, 178 (Mo.App. E.D.1980).
For all of the aforementioned reasons, Point One is denied.
A quick outline of voting procedures will frame the context for analyzing the issues raised by Royster in this Point. A voter entering a polling place first signs the precinct register, and two election judges of opposing political parties identify the voter and initial the register. See Section 115.427.1 and Section 115.431 (2009 Cum. Supp.). All voters' names on the precinct register are numbered consecutively in the order in which they have signed. Section 115.431. After the voter's identity has been certified, two judges of different political parties, or one judge from a major political party and one judge with no political affiliation, shall initial the voter's ballot or ballot card. See Section 115.433. Once these requirements have been satisfied, the election judges shall allow the voter to proceed to the voting booth and vote. See Section 115.435.
In this argument, Royster only points to one specific statute that provides an express sanction for failing to follow one of the above statutory mandates. Section 115.457 states the following:
(Emphasis added.)
The only specific finding of wrongdoing found by the trial court in this regard was that fourteen ballots in total "were identified that were not initialed by two election judges." After hearing evidence presented by the opposing parties in this matter, the trial court found the following as it pertained to the Garfield Elementary School Polling Place:
As it pertained to these disputed ballots, the trial court reached the critical legal conclusion that "[t]he credible evidence demonstrates that the ballots without the initials of two (2) election judges are in that condition due to mistakes made by the election judges and that the ballot is otherwise legal and proper." Because the trial court expressly found that the failure to initial the ballots in question was due to the mistakes made by the election judge, we conclude that the trial court did not err in refusing to reject these ballots pursuant to Section 115.457.
Royster acknowledges the express finding by the trial court that the failure to initial these ballots was due the mistake of the election judges. However, Royster makes an unrelated argument that because these un-initialed ballots were not "otherwise legal and proper" pursuant to Section 115.457, the trial court was compelled to discard these votes cast. However, to support his argument that the votes were not "otherwise legal and proper," Royster relies on facts that were not found by the trial court. To give just one example,
Finally, Royster argues that the findings and conclusions of the trial court were not supported by substantial evidence:
Royster argues that "the Trial Court is mistaken" because "Mr. Kieffer never testified that the number of cast ballots reconciled with the number of voters signing the roster." Royster also argues that Mr. Kieffer was unqualified to opine as to what caused the ballots in question not to be initialed because Mr. Kieffer did not speak to these election officials regarding this matter. Based on the following trial testimony of Mr. Kieffer, we disagree:
Accordingly, we believe that the aforementioned testimony by Mr. Kieffer, and the reasonable inferences to be drawn from it, support the trial court's above factual findings.
For all of the aforementioned reasons, we deny Royster's second Point Relied On.
In Point Three, Royster argues the "trial court erred in its decision when it determined that precincts in the 40th Legislative District were lawfully consolidated, because Section 115.115 RSMo. prohibits in all cases, the consolidation of polling places for precincts that do not join geographically." It was not disputed at trial that precincts were consolidated at polling locations at Sycamore Groves Apartments and Saint Mark Union Church.
Section 115.115.2 provides the following:
First, we consider whether Royster has a legally cognizable interest in the subject matter. Royster does not challenge the election results in this Point, but only the alleged mis-consolidation of precincts. There is a question as to whether Royster, as a candidate, has a legally cognizable interest in the location of the polling places. See Section 115.115.2. "`Standing requires that a party seeking relief have a legally cognizable interest in the subject matter and that he has a threatened or actual injury.'" Mink v. Wallace, 84 S.W.3d 127, 129 (Mo.App. E.D. 2002). Section 115.553 provides that "[a]ny candidate for election to any office may challenge the correctness of the returns for the office, charging that irregularities occurred in the election." Because in this Point Royster does not challenge, at least directly, the correctness of the vote return, his standing to challenge the consolidation of the precincts is therefore open to question.
Even when assuming arguendo that he had standing to bring the instant claim, Royster has failed once again to demonstrate that the trial court's relevant findings and conclusions in this regard were somehow in error: "No evidence suggests that the combining or consolidating of the precincts had any impact on the election." No evidence was presented to the trial court of a single voter that was not able to vote (or even inconvenienced) because their polling place was located in an improperly consolidated precinct. Royster in his brief does not cite to any specific evidence of harm but merely asserts that "[i]n one of these consolidated precincts, no voter voted, in any race." However, there was no evidence as to why no voter
Point Three is denied.
In Point Four, Royster argues that the "trial court erred in denying a new election because ... the combination of the many violations of election laws showed such a total disregard for the law, and a willful violation of the general spirit and controlling purpose thereof, that the election should have been invalidated."
This Point merely conglomerates the arguments previously made by Royster on appeal and argues that their totality warrants a new election. But as discussed at length already in this opinion, the trial court found that the claimed irregularities did not warrant a new election as a matter of law. We will not repeat herein why we believe the trial court's specific findings of fact and conclusions of law were not erroneous because to do so would be redundant.
Point Four is denied.
While minor irregularities and miscues by election officials may not be uncommon, any irregularities are scrutinized and are not taken lightly by this court. But suspicion that someone could have had an improper motive in assisting voters is not proof that such person did have an improper motive, or that such person carried out any wrongful plan, particularly when the trial court found, based on the record before it, that all voters were registered voters, and all voluntarily accepted (and presumably asked for) the assistance they had. The trial court had reason to reach the conclusions that it did and the evidence supported those conclusions.
It goes without saying, however, that our democracy is premised on the fact that free and fair elections occur in this State. Those election authorities in whom we place this deep trust must place the highest regard in fulfilling their duties because our system of government cannot function without their dedicated service to enforce the law in this regard. Because any irregularities will be closely scrutinized by the courts, we urge the Board to fully review and strengthen its procedures and training of election judges.
With that said, for all of the aforementioned reasons, we affirm the judgment of the circuit court based on the fact that Royster has simply failed to demonstrate that the court's judgment was somehow in error.
All concur.