THE CIRCUIT COURT OF ST. LOUIS CITY TWENTY-SECOND JUDICIAL CIRCUIT STATE OF MISSOURI BRUCE FRANKS, R., Contestant, V. ST. LOUIS CITY BOARD OF ELECTION JOAN BURGER, in her of?cial capacity as Chairwoman of the St. Louis City Board of Election Commissioners; PAUL MALONEY, in his of?cial capacity as a member of the St. Louis City Board of Election Commissioners; BENJAMIN PHILLIPS, in his of?cial capacity as a member of the Case No. St. Louis City Board of Election Commissioners; ANDREW SCHWARTZ, in Division his of?cial capacity as a member of the St. Louis City Board of Election Commissioners; and PENNY HUBBARD, Contestees. SERVE St. Louis City Board of Election Commissioners Contestees at: 300 N. Tucker Boulevard St. Louis, MO 63101 SERVE Contestee Hubbard at: 1017 N. Sixteenth St. St. Louis, MO 63106 VERIFIED PETITION FOR ELECTION CONTEST Petition for Election Contest David Roland, Attorney at Law Franks v. STL Bd. of Election Comm?rs, et al. Page 1 of 15 14779 Audrain Road 815 Case No. Mexico, Missouri 65265 Division (3 14) 604-6621 INTRODUCTION 1. On August 2, 2016, 52.7% of the voters who physically went to the polls to cast ballots for the Democratic Party?s nominee to serve the 78th State House District (?the District?) in the Missouri House of Representatives voted in favor of Bruce Franks, giving him a 211 vote lead over the incumbent, Penny Hubbard. 2. But Franks knew, just as those who closely watch St. Louis politics have known for years, that even a dominant performance on election day is no guarantee of victory, due to two factors: (1) races involving a member of the Hubbard family almost always see extraordinarily high numbers of absentee ballots, and (2) no matter how strong a challenger performs in the polling places, the absentee ballots always seem to favor the Hubbards by margins that are, quite literally, unbelievable. 3. Even though Franks easily won the in-person balloting, Penny Hubbard won an astonishing 78.5% of the 530 absentee ballots cast in the race to become the Democratic Party?s nominee to represent the District (?the Contested according to the of?cial results announced by the St. Louis City Board of Election Commissioners (?the Board?), Hubbard won the Contested Election by a margin of 90 votes. 4. But even before the Primary was held, Franks was asking hard 1 For the purposes of this Petition, Franks will refer to the August 2, 2016, primary election broadly as ?the Primary;? when speaking Speci?cally to the race for the Democratic Party?s nomination to serve the District in the Missouri House of Representatives, he will use the term ?the Contested Election.? Petition for Election Contest David Roland, Attorney at Law Franks v. STL Bd. of Election Comm?rs, et al. Page 2 of 15 14779 Audrain Road 815 Case No. Mexico, Missouri 65265 Division (314) 604-6621 questions about whether the Hubbards? consistent dominance in absentee balloting is legitimate, or whether it is the result of systematic, fraudulent use of the absentee ballot system by persons not lawfully authorized to cast absentee ballots. 5. After reviewing the list of registered voters from the District who applied for absentee ballots in advance of the Primary, Franks has identi?ed at least 280 applicants who, upon information and belief, did not satisfy the statutory requirements to lawfully cast an absentee ballot. See Contestant?s Exhibit 4; the names highlighted in red represent speci?c voters living in the District who, upon information and belief, did not meet any of the quali?cations to cast an absentee ballot in the Primary. 6. Upon information and belief, when he is able to review the applications themselves and the absentee ballot envelopes that voters from the District sent to the Board, Franks believes he will be able to identify scores of additional applicants who did not satisfy those statutory requirements. 7. Because the of?cial results of the Contested Election showed Franks trailing Hubbard by only 90 votes, if this Court ?nds by a preponderance of the evidence that at least 90 absentee ballot applicants from the District were not lawfully authorized to cast an absentee ballot, this Court should hold that ?there were irregularities of a suf?cient magnitude to cast doubt on the validity of the initial election,? and it should order the Board to hold a new primary election to determine whether Bruce Franks, Jr., or Penny Hubbard should be the Democratic Party?s nominee to serve the District in the Missouri House of Representatives. 115.549, RSMO. Petition for Election Contest David Roland, Attorney at Law Franks v. STL Bd. of Election Comm?rs, et al. Page 3 of 15 14779 Audrain Road 815 Case No. Mexico, Missouri 65265 Division (314) 604-6621 JURISDICTION AND VENUE 8. This action is brought pursuant to 115.527 to 115.601, to challenge the results of the Contested Election. 9. This Court has jurisdiction over this action pursuant to 115.529, 10. Venue for this action is proper in this Court because the Contested Election was held in St. Louis City, which is in the Twenty-Second Judicial Circuit. 115.531, PARTIES 11. Contestant Bruce Franks, Jr., is a candidate for the 2016 Democratic Party nomination to serve the District in the Missouri House of Representatives; he lives in the District. 12. Contestee St. Louis City Board of' Election Commissioners (?the Board?) is the government entity charged with conducting elections in St. Louis, Missouri. 115.015; 115.023, 13. Contestee Joan Burger is the Chairperson of the Board; she is sued in her of?cial capacity as a member of the Board. 14. Contestee Paul Maloney is a member of the Board; he is sued in his official capacity as a member of the Board. 15. Contestee Benjamin Phillips is a member of the Board; he is sued in his of?cial capacity as a member of the Board. 16. Contestee Andrew Schwartz is a member of the Board; he is sued in his Petition for Election Contest David Roland, Attorney at Law Franks v. STL Bd. of Election Comm?rs, et al. Page 4 of 15 14779 Audrain Road 815 Case No. Mexico, Missouri 65265 Division (314) 604-6621 of?cial capacity as a member of the Board. 17. Contestee Penny Hubbard is the incumbent Representative for the District in the Missouri House of Representatives and the candidate declared the winner of the Contested Election; she and her husband, Rodney Hubbard, Sr., live in the District and St. Louis City?s 5th Ward. MS. 18. On August 2, 2016, the Board conducted the Contested Election in St. Louis, Missouri. 19. Contestant Franks and Contestee Hubbard were the only two candidates in the Contested Election. A Historv of Susnicious Absentee Ballot Patterns 20. When Franks decided to run against Hubbard to represent the District, several people warned him that when a member of the Hubbard family is involved in an election, absentee ballots become an unusually large factor in the race. 21. Several weeks before the Primary, Franks and two other candidates, who were running against Penny Hubbard and Rodney Hubbard, Sr., for the of?ces of 5th Ward Committeewoman and Committeeman, respectively, asked an attorney to review the detailed election data available on the Board?s website to determine the legitimacy of the concerns the candidates had heard about irregularities in the use of absentee ballots in Hubbard-related political races. 22. Research revealed that, from 2008 to the present (the only years for which the Board has posted precinct-by-precinct election data on its website), Petition for Election Contest David Roland, Attorney at Law Franks v. STL Bd. of Election Comm?rs, et al. Page 5 of 15 14779 Audrain Road 815 Case No. Mexico, Missouri 65265 Division (314) 604-6621 various precincts in St. Louis City routinely see absentee ballots comprise an extraordinarily high percentage of the total votes cast in those precincts. 23. For the vast majority of St. Louis City election precincts, absentee ballots make up between zero and 15% of the total number of ballots cast in any given election, but in certain election precincts (particularly in the 5th Ward, where Penny and Rodney Hubbard live) it is common for absentee ballots to comprise more than 30% of all votes cast in some of those precincts, and occasionally absentee ballots make up more than 60% of all the votes cast in a given precinct. 24. Furthermore, in political races involving a member of the Hubbard family, the absentee ballots almost always favor the Hubbard much more heavily that would be expected in light of the votes cast at the polls on election day. 25. On July 12, 2016, at Franks? request, his attorney sent a letter to each of the Board?s members detailing the extreme irregularities regarding the use of absentee ballots in St. Louis City elections and asking the Board to investigate and to take action to ensure that the Primary would be conducted lawfully, without any candidate having an unfair advantage. A copy of one of these letters is attached as Contestant?s Exhibit 1; the Contestant hereby incorporates the contents of this letter for the purpose of arguing that the irregularities identi?ed in the body of this Petition are merely a continuation of a long-established pattern of election fraud in the form of abuse of the absentee ballot system. 26. A few days later, the Board?s attorney sent a letter in reSponse stating that because Franks had not asserted ?de?nite violations of the law,? the Board Petition for Election Contest David Roland, Attorney at Law Franks v. STL Bd. of Election Comm?rs, et al. Page 6 of 15 14779 Audrain Road 815 Case No. Mexico, Missouri 65265 Division (314) 604-6621 would not take action to address Franks? concerns. A copy of this letter is attached as Contestant?s Exhibit 2. 27. The Board having declined to take his concerns seriously, Franks asked his attorney to submit to the Board an open records request that would allow a review of this year?s absentee ballot applications and envelopes for signs of ?de?nite violations of the law.? 28. Although no Missouri statute deems either absentee ballot applications or envelopes to be ?closed? records for the purposes of the Sunshine Law, the Board refused to produce COpies of those records for Franks and his attorney to review. 29. The Board did release to Franks and his attorney a list of the names and addresses of those St. Louis City voters who had applied for absentee ballots. A copy of this list is attached as Contestee?s Exhibit 3. 30. The dearth of information available in these lists made it extremely challenging for Franks to discern whether or not the applicants satis?ed the statutory quali?cations to apply for or to cast an absentee ballot. 31. The list indicated that approximately 4,750 voters in St. Louis City requested absentee ballots in advance of the Primary. 32. Of the 4,750 St. Louis City voters Who applied for absentee ballots, Franks discerned that 940 of those applicants (19.8% of the citywide total) listed addresses within the District and 3,810 of those applicants listed addresses outside of the District. A list of the 940 absentee ballot applicants from the District is attached as Contestee?s Exhibit 4. Petition for Election Contest David Roland, Attorney at Law Franks v. STL Bd. of Election Comm?rs, et al. Page 7 of 15 14779 Audrain Road 815 Case No. Mexico, Missouri 65265 Division (314) 604-6621 33. Citywide, there were approximately 178,369 registered voters eligible to vote in the Primary; 18,504 of St. Louis City?s registered voters (10.4% of the citywide total) are located in the District. 34. Even though the District only accounts for 10.4% of St. Louis City?s registered voters, it accounted for nearly 20% of the absentee ballot applications related to the Primary. The Primarv and Its Results 35. The Board?s of?cial election results indicate that St. Louis City voters cast a total of 50,401 ballots in the Primary, 3,818 of which were absentee ballots. A copy of the relevant portion of the Board?s of?cial election results for the Primary is attached as Contestant?s Exhibit 5. 36. The Board counted 4,316 total votes in the Contested Election, 530 of which came via absentee ballot. 37. Franks received 1,997 of the votes cast at the polls on election day, 211 more than the 1,786 cast in favor of Hubbard. 38. But the Board?s of?cial numbers indicate that Hubbard received 416 of the absentee ballots cast in her race against Franks, 302 more absentee ballots than the 114 that were cast in favor of Franks. 39. Consequently, the Board has announced Hubbard as the winner of the Contested Election, by a margin of just 90 votes. Violation of Absentee Ballot Laws ustifies Overturnng an Election Result 40. Missouri courts have made clear that voters? failure strictly to comply Petition for Election Contest David Roland, Attorney at Law Franks v. STL Bd. of Election Comm?rs, et al. Page 8 of 15 14779 Audrain Road 815 Case No. Mexico, Missouri 65265 Division (314) 604-6621 with the laws governing the use of absentee ballots is suf?cient grounds to justify ordering a new election. Barks v. Turnbeau, 573 677 (Mo. App. 1978). 41. ?The opportunity to vote by absentee ballot is clearly a privilege and not a right. Compliance with the statutory requirements is mandatory.? Id. at 681. 42. Violation of the statutory requirements regarding the use of absentee ballots is a matter of great import, and the legislature has designated as a class one election offense any making, delivery, or mailing of a fraudulent absentee ballot application. 115.279, 43. Section 115.277, identi?es ?ve justi?cations that will allow a voter to qualify to cast an absentee ballot: (1) Absence on election day from the jurisdiction of the election authority in which such voter is registered to vote; (2) Incapacity or con?nement due to illness or physical disability, including a person who is primarily responsible for the physical care of a person who is incapacitated or con?ned due to illness or disability; (3) Religious belief or practice; (4) Employment as an election authority, as a member of an election authority, or by an election authority at a location other than such voter?s voting place; (5) Incarceration, provided all quali?cations for voting are retained.2 2 Section 115.133.2, excludes from eligibility to vote any person ?con?ned under sentence of imprisonment.? (footnote continued on next page) Petition for Election Contest David Roland, Attorney at Law Franks v. STL Bd. of Election Comm?rs, et al. Page 9 of 15 14779 Audrain Road 815 Case No. Mexico, Missouri 65265 Division (314) 604-6621 voter cannot truthfully assert that they expect to be ?prevented from going to the polls to vote on election day due to? one of those ?ve reasons,3 they are not authorized to cast an absentee ballot. 45. A voter who obtains an absentee ballot by falsely stating that they expect to be prevented from going to the polls to vote on election day is guilty of fraud and, possibly, perjury. See, Barks at 682. 46. If, upon inspection, it appears that a voter who applied for an absentee ballot was not lawfully authorized to do so, the ballot must be considered ?illegally and improperly cast.? See id. Irr_egularities Cast Doubt on the Validitv of This Contested Election?s Outcome 47 . Upon information and belief, no fewer than 280 of the 940 voters of the District who applied for absentee ballots did not meet any of the statutory requirements to be eligible to cast an absentee ballot in the Primary. 48. Franks believes that once he is permitted to review the absentee ballot applications and envelopes submitted by voters from the District he will identify even more absentee ballot applicants who did not meet any of the statutory quali?cations for casting an absentee ballot. 49. Upon information and belief, persons working for the Board in the department that deals with absentee balloting have observed persons known or believed to be associated with the Hubbard family, the Fifth Ward Democratic 3 Persons authorized to participate in an address con?dentiality program under 589.660 to 589.681, RSMO., are also permitted to utilize absentee ballots. Petition for Election Contest Franks v. STL Bd. of Election Comm?rs, et al. Case No. Division David Roland, Attorney at Law 14779 Audrain Road 815 Mexico, Missouri 65265 (314) 604-6621 Page 10 of 15 Association, party committeepersons, and/or a city alderman bringing people to the Board?s of?ces for the purpose of helping the person apply for and/or cast an absentee ballot. 50. Upon information and belief, persons working for the Board in the department that deals with absentee balloting have observed persons delivering multiple absentee ballot applications and/or multiple absentee ballot envelopes to the Board?s of?ces, even though 115.279, RSMO., does not authorize anyone other than an absentee ballot applicant or ?his or her guardian or relative within the second degree of consanguinity or affinity? to deliver absentee ballot applications to the Board. 51. Upon information and belief, the vast majority of the absentee ballot applications from the District indicated that the applicant was requesting an absentee ballot on the grounds that they are ?incapacitated or con?ned due to illness or injury.? 52. Upon information and belief, many of the persons that applied to use absentee ballots in the Primary and indicated as their justi?cation for doing so that they are ?incapacitated or con?ned due to illness or injury? are actually relatively healthy persons under the age of 65 who are able to travel around town without signi?cant assistance or dif?culty; these persons cannot legitimately be considered ?incapacitated or con?ned due to illness or injury.? 53. Upon information and belief, many of the persons applying to use absentee ballots in the Primary were either asked or encouraged to do so by a Petition for Election Contest Franks v. STL Bd. of Election Comm?rs, et (11. Case No. Division David Roland, Attorney at Law 14779 Audrain Road 815 Mexico, Missouri 65265 (314) 604-6621 Page 11 of 15 member of the Hubbard family or a member of the Fifth Ward Democratic Organization. 54. Upon information and belief, the Board failed to comply with 115.299, by counting absentee ballots on days other than election day. 55. Upon information and belief, the Board failed to comply with 115.299, by failing to maintain records of the delivery of absentee ballots to teams of election judges for the purpose of counting the votes. A copy of a letter in which the Board?s attorney acknowledges that it has not retained records re?ecting the delivery of absentee ballots to teams of election judges in accordance with 115.299, is attached as Contestant?s Exhibit 6. 56. As Franks lost the Contested Election by only 90 votes, showing by the preponderance of the evidence that at least 90 of the 940 absentee ballot applicants within the District were not lawfully permitted to cast an absentee ballot would demonstrate irregularities of a suf?cient magnitude to cast doubt on the validity of the contested election. 57. Because Franks will show that more than 90 of the 940 absentee ballot applicants within the District were not lawfully permitted to cast an absentee ballot, this Court should order the Board to conduct a new primary election to take place no later than September 12, 2016, at which the registered voters of the District will decide whether Bruce Franks, Jr., or Penny Hubbard should be the Democratic Party?s nominee to serve the District in the Missouri House of Representatives. 58. Time is of the essence in this matter; the Board has already delayed by Petition for Election Contest David Roland, Attorney at Law Franks v. STL Bd. of Election Comm?rs, et al. Page 12 of 15 14779 Audrain Road 815 Case No. Mexico, Missouri 65265 Division (314) 604?6621 weeks Franks? ability to review the absentee ballot applications and envelopes that will help him succeed in this challenge, so the Court should immediately order the Board to make those records available for review. 59. Section 115.535, RSMO., requires the trial court to conclude its review of this case no later than August 30, 2016, the tenth Tuesday prior to the general election. 60. Section 115.125.2, forbids any court ?to order an individual or issue to be placed on the ballot less than six weeks before the date of the election; in this situation, the date six weeks before the General Election is September 27, 2016. WHEREFORE, the Contestant asks this Court (1) to allow the Contestant to conduct discovery in order to gather additional evidence of the irregularities noted in this Petition, (2) to grant the Contestant leave to present his evidence before the Court at a hearing, (8) to ?nd that the Contestant has shown irregularities of a suf?cient magnitude to cast doubt on the validity of the initial election;? (4) to order the Board to hold a new primary election in the District no later than September 12, 2016, at which the District?s registered voters will choose either Bruce Franks, Jr., or Penny Hubbard as the Democratic Party?s nominee to serve the District in the Missouri House of Representatives, (5) set a nominal bond of no more than $10.00 in regard to the special primary election, (6) to order the Board to place both Franks? and Hubbard?s names on the general election ballot in order to ensure that Hubbard cannot win this Contest by simply ?running out the timeclock? and preventing Franks? from succeeding in this Challenge by removing any chance of Petition for Election Contest Franks v. STL Bd. ofElection Comm?rs, et :13. Case No. Division David Roland, Attorney at Law 14779 Audrain Road 815 Mexico, Missouri 65265 (314) 604-6621 Page 13 of 15 being added to the general election ballot, and to grant any other relief as in the Opinion of the Court may be just and proper under the circumstances. Respectfully submitted, Don/W David Roland Mo. Bar #60548 1477 9 Audrain Road 815 Mexico, MO 65265 Phone: (314) 604-6621 Fax: (573) 562?6122 Email: libertyandjustice@gmail.com Petition for Election Contest Franks v. STL Bd. of Election Comm?rs, et (11. Case No. Division David Roland, Attorney at Law 147 7 9 Audrain Road 815 Mexico, Missouri 65265 (314) 604-6621 Page 14 of 15 VERIFICATION 1, Bruce Franks, verify that I have read the foregoing veri?ed petition and declare that, to the best of my knowledge, information, and belief, the allegations therein are true and correct. MA By: . Bruce Franks] r. STATE OF MISSOURI CITY OF ST. LOUIS worn 0 nd subscribed to me this ?day of August, 2016. 3 ?ag; KAREN CARTY Notary Public - Notary Seal Stale of Missouri. Saint Louis City Commission 1262?298 My Commission Expires Oct 2015 Petition for Election Contest Franks v. STL Bd. of Election Comm?rs, et (11. Case No. Division David Roland, Attorney at Law 14779 Audrain Road 815 Mexico, Missouri 65265 (314) 604-6621 Page 15 of 15