Resolving Presidential Election Contests in Missouri
by Hugh Brown1
How would a contested presidential election in Missouri unfold? This article examines the process of a recount of a presidential election in Missouri and resolution of a dispute of its electoral votes, and makes recommendations for improvements in Missouri's statutory scheme.
The 2000 presidential election produced a "once in a century" result. A confluence of wild improbabilities together brought a six week, post-election day mystery as to the identity of the 43rd president. After an 18-month campaign, Texas Governor George W. Bush and Vice-President Al Gore fought to a draw. Gore claimed victory in the popular vote, while Bush ultimately received a majority of Electoral College votes and the presidency. As has been extensively chronicled,2 the resolution of the Electoral College hinged on the outcome of one state. That state, Florida, needed to resort to the full depths of its election machinery to award its electoral votes.3
But what if the 2000 presidential election was not a once in a century proposition after all? The 2000 election was the culmination of a Deadlock between the two political parties that built in the 1990s. Through a Democratic capture of the White House in 1992, a Republican takeover of Congress in 1994, and the bitter impeachment of President Clinton in 1998, the parties engaged in fierce political fighting that left the electorate neatly split between them.4 Before the 2004 conventions, polls indicated the nation still to be sharply divided.5
George W. Bush carried Missouri's 11 electoral votes in 2000 as part of his 271 electoral vote total.6 Had Missouri given its votes to Al Gore, Gore would have been elected president. In fact, Missouri is the most reliable predictor of the presidential winner in the nation. Since prior to World War I, Missouri's electoral votes have gone to the winner in every election but 1956.7
As Missouri goes, so goes the country. What if a future election produces a result like 2000, where a few votes in a single state determe the presidency, with Missouri the state in doubt? With the eyes of the world upon it, would Missouri fare better than Florida in 2000? This article briefly examines the process for a recount of a presidential election in Missouri and resolution of a dispute of its electoral votes, and makes recommendations for improvements in Missouri's statutory scheme.
I. The Initial Recount
No aspect of the disputed 2000 election was more prominent that Florida's ballot recount. In 2000, Florida law provided for an automatic recount if a losing candidate was within one-half of one percent of the vote total of the winning candidate.8 Missouri law is more permissive, granting a right to recount when the losing candidate "was defeated by less than one percent of the votes cast."9 The recount is limited to "one additional counting of all votes counted" for the election at issue.10 As the Florida recount famously turned on the nature of what constitutes a vote, introducing the concept of chads into the American vernacular,11 a Missouri recount would need to establish parameters for the statutory requirement to count "all votes counted."12 A 1980 case from a St. Louis party committee election provides guidance on the mathematics of a recount.
State ex rel. Travers v. McBride13 considered a recount of a Democratic committeewoman election for the 8th ward of St. Louis. In an August 5, 1980 primary, Beverly Buchheit received 1,207 votes, Mona Riegert 1,183 votes, and 64 voters chose a write-in candidate.14 Claiming she had lost by less than one percent of the total votes cast, or 24 of the 2,454 total, Riegert petitioned for a recount.15 The case turned on the construction of the phrase "votes cast for an office" in § 115.601, RSMo.16 The Eastern District of the Court of Appeals determined that votes cast for an office were those which indicated a preference for a validly-declared candidate.17 As the 64 write-in votes did not indicate a vote for any validly declared candidate, they were not included in the total number of votes cast in the election.18 As she lost by 24 votes out of the 2,390 validly cast votes, Reigert's margin of defeat was outside the one percent limit, and she was not allowed a recount.19
Section 115.601, RSMo, received its most recent interpretation in McFarland v. Aaron.20 This case considered an election for the office of public administrator for Phelps County held on November 7, 2000. The original count revealed that Judith Faust Aaron garnered three more votes than Lou McFarland.22 Since this margin was well within the one percent margin of § 115.601, RSMo, the circuit judge ordered a recount.23 The recount produced a tie election.24 The circuit judge then ordered the election clerk to re-run one single precinct, presumably as a test of the voting equipment, although the mandatory voting equipment test25 had already been performed.26 The sample precinct run produced an extra vote for Aaron.27 The judge then ordered a second recount of all of the ballots.28 In this second recount, Aaron held a one-vote lead, 7,828 to 7,827.29 The relevance of this case comes from its disposition. The Southern District of the Court of Appeals threw out the second recount.30 Noting that § 115.601, RSMo, allows for "one additional counting"31 of the votes, the statute "provides no basis for more than one recount."32 With the automatic recount for elections decided by a margin closer than one percent of the votes cast for a declared candidate limited to one count and one count only, a candidate trailing after the lone automatic recount would then have to seek judicial or legislative relief to prevail.
II. Contests in the Judiciary and Legislature
A. The Statutory Scheme
Missouri statutes set forth the procedures for contests to primary, general and special elections.33 "The right to contest an election exists only as defined by statute, and the jurisdiction of the . . . court" or body hearing the contest is confined to that set forth in the statutes.35 When the statutes are silent on a procedural matter, the procedures and rules of civil actions apply.36
The Supreme Court of Missouri has original jurisdiction for election contests involving officers elected statewide: "governor, lieutenant governor, secretary of state, attorney general, state treasurer and state auditor."37 The jurisdiction of the state Supreme Court further extends to constitutional amendments and statutes referred to voters and to certain judicial retention questions.38 The Missouri Senate determines contested elections for state Senate races, while the Missouri House of Representatives holds jurisdiction for contests of state House elections.39 All other contests are heard by the circuit court of the circuit in which all or part of the election was held and in which any irregularity occurred, as selected by the contestant.40
Presidential electors present a special problem, however. Part of the confusion a contested presidential election would bring stems from the idiosyncrasy of our federal system. When voting for president, Missourians mark a ballot for the ticket of a party, such as George W. Bush and Richard B. Cheney. The votes actually elect the members of the electoral college allotted to Missouri.41 While presidential electors are elected in a statewide election held concurrently with federal and state general elections,42 the presidential electors are not named in § 115.555, RSMo, among the state officers over which the state Supreme Court has jurisdiction for election contests. Instead, § 128.100, RSMo (referred to herein as the "Elector Contest Law") gives this jurisdiction to a joint assembly of the two houses of the legislature.
The Elector Contest Law provides a rare instance of an election statute outside of the Chapter 115 election code. The election of presidential electors receives special treatment in a chapter defining the congressional districts of the state.43 Contested elections for electors are to be resolved by a joint vote of the two houses.44 While the joint assembly meets in the House chamber, the president of the Senate, typically the lieutenant governor, presides.45
The statute proscribes a limited number of procedures. "[A]ny person [who] contests the election of an elector" presents "a petition to the general assembly," and in this petition sets forth the grounds of the protest and evidence in support.46 The houses then vote whether to grant a prayer for leave to produce proof.47 This initial vote would be a threshold barrier to further investigation or action, as a majority of the joint assembly could vote to deny the production of proof and effectively gut the process. If a majority of the whole number of votes of both houses approve the prayer, then the joint houses appoint a joint committee to conduct an investigation of the petition allegations.48 The joint committee may take testimony, call witnesses and issue subpoenas through the circuit judges.49
There the statutory scheme ends, raising more questions than providing answers. Among the issues not resolved in the statute are: standing to petition, time to petition, answer, trial procedure, appeal and recount mechanics. Although the Elector Contest Law does not explicitly authorize it, faced with an election contest, the General Assembly would turn to the only statutes available for answers to these issues, the election code in §§ 115.526-115.601, RSMo.
B. Unresolved Issues
1. Standing
Any candidate for a Missouri office can challenge the election returns.50 The challenger is referred to as a contestant. For presidential electors, however, this again raises the issue as to what party is actually the candidate to become the contestant: the party presidential nominee himself or herself, or the slate of electors. Standing for this contest is further complicated by the Elector Contest Law, which allowed for the filing of a contest petition by "any person" rather than any candidate. A broad interpretation would allow any citizen to file a contest position.
2. Time to Petition
Recognizing the need to resolve election disputes in a prompt manner, Missouri law gives election contests preference in the order of hearing, and directs evening and weekend sessions if necessary.51 The Elector Contest Law, though, does not specify a time frame for commencement or resolution of an elector contest. For other elections over which the General Assembly houses have jurisdiction, state House and Senate races, a petition must be filed within 30 days of announcement of election results by the secretary of state.52 This is consistent with the 30-day period to file contests to executive branch offices.53
3. Answer
The Elector Contest Law allows for the filing of a petition by a contestant, but does not mention a responsive petition. For state legislative and officer contests, the party prevailing in the election (a "contestee") may file an answer to the contest petition within 15 days of its filing.54 Consideration of an answer raises several issues for the General Assembly. The legislators must first decide who the contestee is from among the usual suspects of the presidential nominees and electors, or from other persons if the contestant is someone different. Second, the General Assembly must determine when to allow a contestee to answer. As mentioned above, the Elector Contest Law mandates an initial threshold vote after the filing of a petition and before appointment of a committee to investigate evidence. The answer could be filed before or after this threshold vote. Finally, the investigation committee is empowered to take the "testimony" of "the person whose place is contested,"55 which the General Assembly may view as an opportunity to hear the contestee in lieu of an answer.
4. Trial Procedure
The Elector Contest Law empowers the General Assembly to appoint a committee to investigate and gather information, but ends before establishing procedure after the report of the committee. Since the contest is ultimately to be resolved by a joint vote of the houses, the General Assembly would at some point meet to consider the committee's work and pass a final judgment. This was the procedure followed in modern state House election contests.56 After deciding on a recount, as discussed below, a final vote by the two houses would award Missouri's electoral votes to one candidate or another. In legislative seat races, however, the state House and Senate have the option to order a new election, which an ambitious legislature may decide to apply to an elector contest.57
5. Appeal
There is no right to appeal the decisions of the state House and Senate.58 Curiously, the statute prohibiting appeal refers to a contested election and not just to those for state House or Senate races considered by the General Assembly.59 An elector contest thrown into the General Assembly may qualify under this statute as unable to be appealed. Practically, the concurrent lawsuits an elector contest would inevitably spawn would allow the Supreme Court of Missouri or a federal court the opportunity to claim jurisdiction over an appeal.
6. Recount
Along with the automatic recount for elections with a margin of less than 1%, a court or legislative body may order an initial or additional recount.60 Unlike the issues discussed above, a recount does not have separate statutory provisions for court proceedings and legislative bodies. Either may order a recount upon a prima facie finding "of irregularities which place the result of [the] . . . election in doubt."61 A prima facie finding is one which places in doubt "the validity of a number of votes . . . greater than the margin" between the two candidates.62 In determining how to place in doubt the validity of a vote, however, § 115.583, RSMo, does present an interpretation question. The General Assembly may order a recount of the votes called into question by the petition and answer, implying a limit to the discretion of an investigation.63 The statute then states that a court (omitting a legislative body) "may hear additional evidence offered by any party bearing on any issue relating to the contested election," implying a license for a free-wheeling, all-encompassing investi-gation.64 The rules of civil cases apply.65
Once the court or legislative body decides to conduct a recount, it issues a writ to the appropriate election authority commanding the recount.66 After receiving the writ, the election authority must set a date within 20 days for the recount.67 The court or legislative body ordering the recount may then determine the legality of the votes questioned.68 The ordering authority can appoint disinterested parties to assist with the recount, and the contestant, the contestee, and their attorneys may be present.69
C. The Calendar
If handed a contested presidential election for resolution, a General Assembly would have to act with alacrity. Presidential electors meet to cast their votes on the first Monday following the second Wednesday in December.70 Using 2004 as an example, with election day falling on November 2 and the electors meeting on December 13, a contested presidential election must be raised, fought and decided in 35 days. The time may be even shorter than that. In order for a state's electoral vote to be counted without a challenge in Congress, the state must resolve any election contests and make a final determination of its elector slate six days prior to the vote-casting meeting of electors in December.71 In 2004, this date would be December 7, leaving a mere 29 days for resolution.
As noted above, however, Missouri's mechanics of resolution of an election contest are not geared for a speedy process. In fact, if the parties take time for an automatic recount, 30 days to file a petition, 15 days for an answer, time for an investigation committee appointment, time for testimony and investigation, 20 days for a response to a writ of recount and time for a final vote, the election contest could drag well past the president-elect's inauguration day. Although both sides in 2000 moved with due haste, in a future contest one or both sides may instead wish to run down the clock and throw Missouri's electoral votes into Congress for resolution.72
This calendar does not take into account court challenges to the process, which, as mentioned, are inevitable. This article will not speculate on all possible approaches, but will next consider one that would certainly be raised: whether the Elector Contest Law violates the Missouri constitution.
III. Challenging the Elector Contest Law
The Elector Contest Law grants exclusive jurisdiction of elector contests to a joint assembly of the state House and state Senate.73 Article 7, § 5 of the Missouri Constitution, however, suggests this may not be allowed. This clause gives the state Supreme Court the right to hear "[c]ontested elections for governor, lieutenant governor and other executive state officers."74 Contests of elections for "all other public officers of the state" are to be determined by "courts of law."75 Are, then, presidential electors officers of the state?
A case from Missouri's more colorful political past states that they are. Walker v. United States76 considered the conspiracy and election fraud indictment of judges of election, election clerks and a precinct captain who intentionally misrepresented votes and intimidated voters in the 1936 presidential and congressional election.77 The defendants faced a slew of charges, and were ultimately convicted of many.78 Included in the charges were a count of interfering with the conduct of a federal election by reason of their committing illegal acts against voters who were voting in the presidential election.79
The defendants appealed their conviction on this count under the argument that the voters in the 1936 presidential election were voting for presidential electors, and, since Missouri's electors were state officers and not federal, they could not have interfered in a federal election.80 The court agreed, finding that presidential electors were state officers, and not officers of the United States.81 The court quoted the United States Supreme Court in In re Green:82
Although the electors are appointed and act under and pursuant to the Constitution of the United States, they are no more officers or agents of the United States than are the members of the state legislatures when acting as electors of federal senators, or the people of the States when acting as electors of representatives in Congress.83
Considering the presidential elector laws of 3 U.S.C. §§ 5a to 11c, the
Walker court stated that "[t]his legislation recognizes that the mode of selection of electors from a particular state is a matter of local law."
84
Armed with Walker and acting pursuant to Article 7, § 5 of the Missouri Constitution, the Supreme Court of Missouri or an ambitious lower court could assert jurisdiction over a presidential election contest. Missouri could then face the embarrassment of having its judicial branch proclaiming one slate of electors, while the legislative branch proclaimed another.
IV. Fixing the Creaky Machinery: Reform Recommendations
Before a contested presidential election arises, Missouri should take steps to repair its contest resolution method.85 The first, and most important, step is a firm clarification on the entity with jurisdiction to resolve the dispute. This should be the Supreme Court of Missouri.
The Court offers several significant theoretical and practical advantages over the legislature. First, the Court has the credibility of being a non-partisan decision maker. As an inherently political body, the General Assembly would suffer from the taint that any decision it would make would be driven purely by politics, even if the legislators decide on the merits. A chief asset of the judicial branch, in contrast, is the public's perception of its fairness. This is especially true for Missouri, as the Missouri Plan for judicial selection and tenure has become a national model for state judiciaries, and a synonym for judicial fairness. Second, the Court can act with greater speed than the General Assembly. Given the tight time frame discussed above, the body hearing the election contest must gather information and render a decision in a matter of a few short weeks. The General Assembly, by contrast, may have to use much of that time simply to enter into session and organize for investigation. Third, as the primary work of the Court is resolution of questions of law and fact, the Court has had experience resolving complex, emotional and high profile questions, whereas the legislature is chiefly a policymaking body.86
For any presidential election contest to have enough validity to be taken seriously, the election would certainly have a margin of error closer than one percent. The Supreme Court of Missouri should have in the first instance the authority to order and supervise the § 115.601 automatic recount, either directly or through writs to the circuit courts. Following the automatic recount, the presidential candidates themselves, or their organizations in the states, should be the parties to bring a contest petition before the Court. Filings for petitions and answers should have strict time limits. While the Court should have wide power to investigate, examine evidence and hear testimony from witnesses, these powers and the scope of the cases presented by the parties should be at the discretion of the Court. Finally, the rulings of the Court should be deemed final for purposes of the resolution deadline established in 3 U.S.C. §§ 5 and 7.
The next once in a century election may not occur in 2004, and it may not involve Missouri when it does. Given Missouri's long tradition as a swing state winnable by both parties, however, the state should prepare for the eventuality. Ensuring the availability of a smooth process for resolution of a presidential election contest would serve the state well.
Footnotes
1 Mr. Brown is an associate with Shook, Hardy, & Bacon, L.L.P., Kansas City. The opinions expressed herein are solely those of the author.
2 The 2000 election and the Florida recount received prolific contemporaneous coverage, and numerous books and articles have been written on the election since then. A fine summation of events is The Political Staff of The Washington Post, Deadlock: The Inside Story of America's Closest Election (2001) (referred to herein as "Deadlock"). For sake of consistency, references to events from 2000 are sourced from Deadlock.
3 See Deadlock, 42-43, 51, 245-46.
4 See id., 6-10.
5 Since polls are but a snapshot of public opinion and given the advance time required for publication, I invite the reader to www.gallup.com or www.rassmussenreports.com for the latest tracking poll information. Prior to the party conventions, most polls showed the race ties, or gave Senator Kerry a narrow lead. State by state surveys gave neither candidate an electoral college edge. (See, e.g., Swing State Watch, Newsweek, August 30, 2004, p. 27, showing 12 states with 152 electoral votes as tossups. Missouri was listed as a tossup state, with Kerry leading Bush 49%-48%.)
6 See Michael Barone & Richard E. Cohen, The Almanac of American Politics 915-916 (2004). Bush carried Missouri with 1,189,924 votes to Gore's 1,111,138. If Gore had won Ralph Nader's 38,515 votes, Bush's margin of victory would have narrowly exceeded one percent. See id. at 916.
7 See id. at 915. Since 1900, Missouri's electoral votes went to only one losing candidate. Adlai Stevenson carried Missouri in his 1956 rematch with Dwight Eisenhower.
8 Fla. Stat. ch. 102.141(6) (2003).
9 Section 115.601.1, RSMo 2000.
10 Section 115.601.5, RSMo 2000.
11 See Deadlock, 134-36.
12 Section 115.601.5, RSMo 2000.
13 607 S.W.2d 851 (Mo. App. E.D. 1980)
14 Id. at 852.
15 Id. at 852-53.
16 Id. at 853.
17 Id. at 854.
18 Id.
19 Id.
20 65 S.W.3d 609 (Mo. App. S.D. 2002)
21 Id. at 610.
22 Id.
23 Id.
24 Id. at 611.
25 See § 115.233, RSMo 2000.
26 65 S.W. 3d at 611.
27 Id.
28 Id.
29 Id.
30 See id. at 611-612
31 Section 115.601.5, RSMo 2000.
32 65 S.W.3d at 612.
33 Sections 115.526-115.601, RSMo 2000.
34 State ex rel. Wilson v. Hart, 583 S.W. 2d 550, 551 (Mo. App. E.D. 1979).
35 Id.
36 See Moore v. Morehead, 666 S.W.2d 460, 461 (Mo. App. W.D. 1984).
37 Section 115.555, RSMo 2000.
38 Id.
39 Section 115.563, RSMo 2000.
40 Section 115.575.1, RSMo 2000.
41 See §§ 128.010 and 128.040, RSMo 2000.
42 Section 128.040, RSMo 2000.
43 Sections 128.010-128.440, RSMo 2000.
44 Section 128.100, RSMo 2000.
45 Id.
46 Id.
47 Id.
48 Id.
49 Id.
50 Section 115.553, RSMo 2000.
51 Section 115.535, RSMo 2000.
52 Section 115.565, RSMo 2000.
53 Section 115.557, RSMo 2000.
54 Section 115.567.3, RSMo 2000, § 115.559.3, RSMo 2000. See also Foster v. Evert, 751 S.W.2d 42, 44 (Mo. banc. 1988), stating that a contestee does not have to file an answer.
55 Section 128.100, RSMo 2000.
56 See Report of House Committee on Elections on Election Contest of James M. Carrington and James Whitemore, 1977 Missouri House Journal 971-72 (March 10, 1977).
57 Section 115.593, RSMo 2000.
58 Section 115.573, RSMo 2000.
59 Id.
60 Section 115.583, RSMo 2000.
61 Id.
62 Id.
63 Id.
64 Id.
65 Id.
66 Section 115.585.1, RSMo 2000.
67 Section 115.585.1, RSMo 2000.
68 Section 115.585.2, RSMo 2000.
69 Section 115.587, RSMo. 2000.
70 3 U.S.C. § 7 (2004).
71 3 U.S.C. § 5 (2004). This issue caused much confusion in Florida in 2000, with leaders of the state legislature preparing, and in the Florida house adopting, a resolution awarding its electoral vote to George W. Bush (See Deadlock, 225). The impact of 3 U.S.C. § 5 on the various Florida recounts was an issue in Bush v. Gore (531 U.S. 98 (2000)) and its companion cases. Those cases raised intricate federal law questions, which various commentators more qualified than this author have discussed.
72 See 3 U.S.C. § 15 (2004). This statue sets forth the procedures for the counting of the electoral votes on January 6 in a joint session of Congress, and official declaration of the president-elect and vice-president-elect. A representative and senator may object in writing to the counting of an electoral vote. Upon such objection, the House and Senate meet separately and vote on the objection. If the two houses differ on which votes to count, the slate of votes signed by the governor of the state are counted. (See id.) If electoral votes are certified pursuant to 3 U.S.C. § 6 and an alternate slate of electors is not received, the votes cannot be rejected. (Id.) 3 U.S.C. § 2 allows a state legislature to appoint electors in the event they are not appointed on election day.
73 Section 128.100, RSMo 2000.
74 Mo. Const. art. VII, § 5.
75 Id.
76 93 F.2d 383 (8th Cir. 1937).
77 Id. at 386.
78 Id.
79 Id.
80 Id. at 388-89.
81 Id.
82 134 U.S. 377 (1890).
83 93 F.2d at 388. Green was decided before the adoption of the Seventeenth Amendment.
84 Id.
85 The 2000 election produced calls for reform, most notably the Blunt Commission on Review of Missouri's Election Statutes (see Making Every Vote Count: Report of Secretary of State Matt Blunt to the People of Missouri (January 29, 2001) at Appendix A, available at www.sos.mo.gov/elections/pubs/bluntcommission/mevc-report.pdf, last visited August 30, 2004. The Blunt Commission recommended minor changes to Chapter 115, but did not address election contests.
86 See, e.g., William M. Corrigan, Jr., The Argument for Lawyers in the Legislature: A Proud History of Service, 59 J. Mo. Bar 216 (2003). The Missouri Bar president reports that the number of lawyers serving in the Missouri Senate is at an all-time low, with the number of lawyers serving in the Missouri House approaching an all-time low.