St. Louis County Board of Election Commissioners, Lisa Ridolfi, Patrick Lynn, and Leo MacDonald, Jr., Relators v. Hon. Maura B. McShane , 492 S.W.3d 177 ( 2016 )

In the Missottri Court of Appeals
Eastertt District
Hollorable Maura B. McShane
HON. MAURA B. MCSHANE,
Filed: Jurre 7, 2016
WRIT DIVISION TWO
ST. LOUIS COUNTY BOARD OF ) No. ED1()4l96
ELECTION COMMISSIONERS, )
LISA RIDOLFI, PATRICK LYNN, and )
LEO MACDONALD, JR., ) Writ of Mandamus
) Circtlit Court of St. Louis County
Relators, ) Cause No. l6SL-CC01246
)
vs. )
)
)
)
)
Respondent.
The relators, three registered voters and the St. Louis County Board of Election
Conuttissioners, petitioned this Court for an emergency writ of rnaztdamus, 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 inunicipal election on April 5, 2016. The Board relied solely on paper
’ However, due to a clerical error, many precincts did not receive a
ballots for this election.
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 5"‘, 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.z The Board argued that the extended
liours would allow voters to return to their polling places and vote, since the ballots had been
replenislied.
in seeking an extension of liours, 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 5"‘, but were unableto vote
due to the lack of ballots. Mr. MacDonald arrived at his polling place at 8:00 a.m. I'Ie tvas
unable to wait until a ballot arrived, because he is employed full-time. He stated, liowever, that
extending the liours of voting would permit him to vote. l\/Is. Ridolfi arrived at her polling place
at 6: 15 a.m. At that titne, there were no ballots for the election at her polling place. The election
judges had already turned away approximately twenty voters by the time l\/Is. 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 tirne, 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 ali, according to the list filed with the circuit court, at least sixty-three
l The Board asserted that it had to rely solely on paper ballots because it \vas unable to reprograni its touchscreeii
voting machines in the t\veiity-t\vo days after the March 15‘*‘ presidential primary election
2 Altliough the Board knew of the insufficient number of bailots early in the inorning ~ by at least 8 o’cloci< a.m. ~
the relators did not file their action in the circuit court until 4:20 p.in. Nothing in the record indicates the reason for
this delay.
constitutional right to vote. The writ was not sought for partisan or strategic advantage The
claimed disenfranchisernent was not of a trivial character and rnigiit cast doubt on the election’s
validity. Literal application of sections 115.407 and 1]5.430.14 would have denied voters their
ftlndaiiielital right to vote. The Attoriiey General voiced no objection to the relief sought. No
other adequate reinedy was available The relief afforded was narrowly tailored to protect the
integrity of the voting process. Mandainus was proper here to prevent an injustice.g
.,t£~‘.
LAWRENCE E. M ONE PRESIDING JUDGE
LISA VAN AMBURG, C.J.,
GARY M. GAERTNER, JR., J., conour.
3 We note that we altered the relief riormally afforded by rnaiidaiiitls. Nornially our writ would order the circuit
courtjtrdge to reinedy the injustice Here, because the need was great and the hour iate, our writ directly ordered the
election authorities to extend the voting iiottrs for the voters in the affected precincts
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precincts, out of a total of eight-lrundred 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 hipartisari. Both the Dernocratic
Director of Elections for the Boa1'd, 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.
ln petitioning the circuit court, the Board pointed particularly to Section 115.40'7, the
state statute prescribing the hours of voting, which directs that polls close at seven o’clock p.rn.
The Board argued that the statute was rrncorrstittitiorral 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 1'elief.
'fhe 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 Cour't for a writ of rnandamus directing the circuit court to
order the polls open an additional two hours, until nine o’clock p.rn.3 We granted the request and
issued a permanent writ of mandarnus. 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
3 This Court became aware ot` this action during the afternoon of April 5"‘. Frorn that time t`or\vard, we constantly
rnonitored the situation through local media channels, phone calls, and the Missorrri Courts’ Case.net system. After'
the Court closed at 5:00 p.rn., no t`e\ver' than nine court personnel remained at the Court, in order to address any writ
petition t`ried. Those r'ernairiirrg were three judges, the court adnrirristrator, the clerk of the court, a deputy court
cierk, a judicial administrative assistant, and a judicial iaw clerk. The circuit court entered its order at approximately
5:OO p.rrt. The writ petition was not filed in this Court unfit 7101 p.rn. We formally issued our writ at 7:25 p.m. We
fear the issuance of our writ alter some polls had closed may have had little remedial et`fect. But this Court cannot
act until and rrnless a petition is tiled, and that did not occur imtil 'I":Ot p.ni.
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during the extended hours were provisional votes, to be sequestered from the regular votes. Arid
we directed that the provisional voting was available only to those qualified voters who orally
affirmed that they tried to vote during regular liours.
Discussiolz
The Missouri Constitution establishes "with unmistakable clarity that the right to vote is
fundamental to Missouri citizens." Wei`ii.s'clienk v. State, 203 S.W.3d 201 , 2l1 (Mo. banc 2006).
"The right to vote freely for the candidate of one’s choice is of the essence of a democratic
society_." Reyziofds v. Sinzs, 377 U.S. 533, 555 (]964). The Board admitted that their failure to
provide sufficient iiunibei' 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 disenfrancliised the
opportunity to cast their vote.
This Court has the atrthority to "issue and determine original reinedial writs." Mo. Const.
art. V, sec. 4.1; Sfci!e ex rel. Lrselha)'d v. Dolan, 465 S.W.3d 496, 498 (Mo. App. E.D. 2015). We
do not issue such \vrits lightly. A writ of inandanius is reserved for extraordinary einergencies.
Issellia)'d, 465 S.W.?)d at 498. The xvrit of niandamus is to be used only as a last resort, in those
cases in vvhicli no adequate alternative remedy exists. State ex rel. Kelfey v. Mitclie]l, 595
S.W.Zd 261, 265-67 (Mo. banc 1980). The object of a writ of iiiandaintls is "not to supersede but
to supply the want of a legal remedy." Ke!ley, 595 S.W.Zd at 266-67.
In reaching our decision, we were niindful of both Section ]15.407, the state statute
governing hours for the polls, and the prior opinion of our court, Sta!e ex )'el. Bus}i-Citeriey 2000
Inc. v. Baker, 34 S.W.?)d 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 vvhich 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. lndeeci, 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 l 15.407."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 ll_’).024 to see that the
legislature has contemplated and considered that emergencies 1nay arise - be it from natural or
man-made disasters - that may impact voting.$ The legislature has provided niechanisms to
" We construe the term "jurisctiction" to mean "authority." See, gener'ali'y, Smte ex re!. ll’rr!son v. Shervy, 436
S.W.3d 718, 722 (Mo. App. E.D. 2014); J.C.W. ex)'el. Webb v. ll§»ciskallcr, 275 S.W.3d 249, 255 (Mo. banc 2009).
5 Section 1 15.024 provides:
Elections rescheduled or relocated due to disaster, detinition--electioii panel established-petition
to reschedule or relocate, contents--order--notice, contents--ballots--procedures--appeal
l. As used in this section, "disaster" means any catastrophic or iiatural disaster, statewide or
nationwide ernergeiicy, man-made disaster, civil disorder, iiisurgeiicy, bioterrorisin attack, terrorist
attack, or enemy attack.
2. 'l“he supreme court shall by rule establish a panel in each district of each court ot` appeals of the
state to consider petitions filed tinder this section. Eacli panel shall consist of three court of
appeals judges from such district, and shall be known as the "election panel" of the district in
\vhiclt it is established
3. In the event that any disaster prohibits any election from occurring on the day the election is
required to be held tinder this cliapter, the election authority of the city or county in which the
election was to be held may petition the election panel of the district in i.vhich the city or county is
located for the election panel to authorize a relocation of the polling places affected by such
disaster, or to schedule a new date upon which the election authority may coriduct the election.
The petition shall include the following:
(l) A description of the event prohibiting the election from occurring;
(2) A statement of the reasons the election cannot be held on the day required by law;
(3) The election authority’s recornineiidation for relocation of the polling places or the new date
upon which the election shall be held;
. (4) A stateinent of the plan for providing notice to voters of the new location or riew date of the
election;
(5) A statement that the election authority will be able to conduct the election at the recommended
location or on the reconilneitcied new date in the same manner as the election would have been
conducted had the disaster not occurred.
address those ernergeiicies, including authorizing the election authorities to petition this Court to
relocate or reschedule the election. Section 115.024.3. Correspoiidingly, 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 liearing.° Section 115.024.8. While the
particular situation at hand is not a legislatively-defined "disaster," the statute evidences the
legislature’s tlnderstanding that einergencies may arise. ln 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., Lcznd\versfek v. Dzzrir`vari, 147 S.W.3d 141, 149-50 (Mo. App. S.D. 2004).
We also considered the nearly century-old case, Stcn‘e ex ref Ciry of Mer)n)his' v.
Hc.rckmarr, 202 S.W. 7 (Mo. 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 inandatory, where no injury
resulted from a failure to open the polls at the tinie designated in the statute. Cify of Me)nphz`s,
4. lt satisfied that the election authority will be unable to conduct the election as required by this
chapter and that the recommended relocation of the polling places or new date of the election will
allow voters to vote as provided by law, the election panel shall issue an order to the election
authority to relocate the polling places or to conduct the election on the new date as set by the
election panel.
5. The election authority shall provide notice to all voters in the election authority’s jurisdiction in
the same inannei' as required for elections by this chapter, provided that the requirements for the
date and time of providing such notice in this chapter shall not apply. Notice of the election shall
include a copy of the order issued by the election panel.
6. The election authority may use the same ballots that were printed for the election that was
relocated or rescheduled under this section, tinless such ballots were daniaged, destroyed, lost, or
spoiled by the disaster.
7. All procedures for voting, counting of votes, and contesting elections required under this section
shall apply to any election relocated or rescheduled under this section, provided that any
requirements for deadlines under this chapter that cannot be met because of the relocation or
rescheduling of the election shall be rescheduled by the election panel.
8. The election authority may appeal any order issued by the election panel under this section to
the supreme cou:t, and the supreme court shall hear such appeal inimediateiy.
"’ By Suprezne Court Operatirig Rule, this right to appeal may be had by filing a petition for writ of mandamus \vitli
the Supreine Court. Operating Rule 24.0 l (b).
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 Menzplzis, 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.
Busl'z-Clzeney 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 Cornniissioners, seeking an extension of voting hours until ten o’clock p.m. in all
locations.l 'l`hey 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/macliine breakdowns that had lasted
for several hours. They further alleged that "nurnerous" other voters in the city had been unable
to exercise their constitutional right to vote due to the Board’s failure "to properly provide
enough voting booths, voting rolls, and other supplies and equipment necessary and appropriate
for the polling places," as required by law. And lastly, they alleged that due to the large turnout
and an inadequate number of polling places, "inaiiy otherwise eligible voters would de facto be
denied their right to vote." The circuit court ordered voting hours extended at all polling places
in the City of St. Louis until ten o’clock that evening Bzzsfr-Clveney, 34 S.W._°>d at 411'.
The City Election Board and a Republican entity, Bush-Clieney 2000, Inc., separately
petitioned for a writ of prohibition, seeking to prohibit the circuit court from enforcing its order.
We granted those petitions and issued writs of prohibition, holding that the trial judge lacked
jurisdiction to extend the hours of voting established by Section 115.407. Id. at 412. Our
decision rested on two main grounds First, no one addressed or challenged the constitutionality
of Section 115.407. Thus, the circuit court made no finding that Section 115.407 was
7 Thee three Democratic Party entities \vere: The Gore and Liebemian 2000 Coininittee, Inc., The Williaiii L. Clay,
Jr. Campaign Committee, and the Missouri State Deriiocratic Coiiilnittee.
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unconstitutional either as written or as applied. Therefore, our decision was dictated by well-
established law, which holds that unless constitutionally infirm, the courts are obligated to follow
and apply the law as \vritteli by the legislature. Ia’. Secondly, the requested relief would not
remedy the alleged problems. The potential voter complained of long lines and feared he would
not be able to vote. But, we noted, under Section 115.407, any voter in line at seven o’clock
would eventually be permitted to vote. We reasoned that if any voters in line at seven o’cloek
were tmwilling or ttnable to stay and vote, their inconvenience would not be lessened by
extending hours in which new voters could join the line. And we observed that the extension of
hours ordered ~ holding all polling places open until ten o’clock - simply permitted voting by
persons not entitled to vote due to the failure to come to the polls on time. Ia'.
This case is readily and entirely distinguishable Here it was the election authority itself
that requested the extension of hours. And the request was bipartisan - both the Delnocratic and
Republican Directors of Elections supported granting relief to the disenfranchised voters. 'fhe
liarm here was real, not speculative as in Busi')-Cheiiey. The Board admitted that it had
disenfrancliised voters. We granted relief not because of inconvenience or speculation, but
because of the very real lack of ballots and the total disenh'aiicliisement of affected voters. And
the relief granted afforded a remedy to the problem at hand, where no other adequate reniedy
existed. The April 5“‘ election was scheduled that day, from 6 o’cloek in the morning until 7
o’clock in the evening Seetions 115.121.3 and 115.407. Although spurned voters were
informed that they could proceed to the Board’s headquarters in Maplewood to vote, this did not
effectively cure the voters’ disenfrancliiseiiieiit. For instance, Mr. MacDonald could not vote
unless the polling hours were extended, due to his employment schedule
Although we are obligated to follow and apply the law as written by the legislature, even
Bzcsh-Clweney recognized that we are not so obligated if the law is constitutionally infirm. The
relators here specifically and expressly alleged that Section 115.407 as applied to the affected
precincts was an unconstitutional denial of voters’ rights. And the Attorney Geiieral, charged
with defending the Statute’s constitutionality, voiced no objection to granting relief to the
disenfrancliised voters. Indeed, if Sections 115.407 and 115.430.14 were strictly enforced, and
the polling hours not extended, then voters would have been denied their fundamental right to
vote. This is not a case where relators directly attacked the constitutionality of the statue.
Mandarnus does not lie to directly challenge and thereby determine the validity or
constitutionality of an ordinance or statue. Smfe ex rel. Ciiy of Crels'hvooci v. Lohnzan, 895
S.W.2d 22, 27 (Mo. App. W.D. 1994); Staie ex rel Seiglz v. M€Fa)'lcnzci, 532 S.W.Zd 206, 208-
09 (Mo. banc 1976). The purpose of rnandainus is to execute and not to adjudicate Cify of
Cresftvood, 895 S.W.2d at 27. 'l`here is a difference between a statute that is wholly
unconstitutional, and thus void ab initio - for instance, one that cannot be constitutionally
applied in any circumstance - and a statute that is otherwise constitutional but rendered
unconstitutional when applied to a particular person or group of people. See, e.g., Strahlei' v. SI
Luke ’s Hospi!al, 706 SW.2d 7 (Mo. banc l986)(holding tlnconstittttioiial the statutory liinitatioii
period for actions against health care providers, when applied to minor rnedical-iiialpractice
claimants); Smre v. Perry, 275 S.W.3d 237 (Mo. banc 2009)(addressing both a facial and as-
applied challenges to statute); Smre ex re/. Chiavolc: v. Viilage of Ocrk\vood, 886 S.W.2d 74, 77
(Mo. App. W.D. l994)(noting that an ordinance may be either facially unconstitutional or
tlnconstitlltioiial as applied). And that is what the relators contended here ~ that Section 115.407
was tlnconstittltioiial when applied to the affected precincts. The validity of a law may be
brought into question when efforts are taken to enforce that law. City of Cheste)_‘field, 895
S.W.Zd at 27-8. ln such circumstances, when a statute is unconstitutional as applied, Missotlri
courts have employed their authority to issue a remedial writ. Stclte ex rel. Bloonzqu:'st v.
Sclrrieirler, 244 S.W.3d 139 (Mo. banc ZOOS)(finding state statute unconstitutional as applied;
writ of prohibition issued).
In ruling against an extension of time in Bzrslt-Cheney, we made a number of
observations regarding the voting process. We noted that “connneiidable zeal to protect voting
rights must be tempered by the corresponding duty to protect the integrity of the voting process."
Bush-Cheney, 34 S.W.Sd at 4l3. And we insisted that “equal vigilance is required to ensure that
only those entitled to vote are allowed to cast a ballot." Otlierwise, we noted, “the rights of those
lawfully entitled to vote are inevitably diluted." Id. We believe we addressed these concerns
here. We iiarrovvly tailored ou1' relief, allowing only those affected precincts to reniain open, and
then allowing only those voters to vote who orally affirmed that they had tried to vote during
regular voting liours. Fllrtlier, we ordered that those votes were provisional votes, to be
sequestered from the regular votes. The relief granted protected both the integrity of the voting
process and the voters’ constitutional right to vote.
lt is often said that a writ of mandamus is proper where it is necessary to prevent injustice
or great injury. See, e.g., Stafe ex rel. Tlionzczs v. Neill, 260 S.W.3d 441, 443 (l\/lo. App. E.D.
2008); Smte ex rel. Tam'rer' v. Nz'xorr, 310 _S.W. 3d 727, 729 (Mo. App. W.D. 2010); joyce v.
Baker, 141 S.W.3d 54, 56 (Mo. App. E.D. 2004). Such was the case here. We emphasize the
extraordinary circumstances present here. "l“he writ sought here was not sought by merely a
disgruntled individual or a losing candidate, but by the election authority itself. The Board
admitted that their failure to provide sufficient number of ballots deprived voters of their
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