By Emily Randall
Northeast News
Oct. 13, 2010

Will Royster had his day in the Missouri Court of Appeals this past Wednesday in his quest for a new election in the District 40 state representative Democratic primary.

A panel of three Western District appellate judges heard arguments from Arnold Day representing Royster; Michael Gunter representing Rizzo, who beat Royster in the Aug. 3 primary by a single vote; and David Raymond representing the Kansas City Election Board.

Presiding Judge James Smart opened with a question referencing Circuit Court Judge Stephen Nixon’s findings in ruling against a new election. Smart asked if there is proof any person voted illegally or if anyone voted for the person he or she didn’t wish to vote for.

“How do we get past those factual findings,” Smart said.

Day argued it is not necessary to prove actual fraud occurred. Rather, because statute was violated — people gave illegal assistance to voters — that amounts to reason enough to hold a new election.

“One way to dilute the vote,” Day argued, “is to give assistance when it’s not authorized. What happens next time when the assistance comes from the union bosses or an employer?”

Judge Smart presented a hypothetical situation — a person who doesn’t see well and doesn’t have any family in town brings a neighbor to assist him to vote but doesn’t fill out a voter assistance card. Is this, Judge Smart asked, reason to throw out an election?

Judge Gary Witt likewise noted that for years he assisted his own grandmother in the voting booth and never realized until this case came up that filling out a voter assistance card is required. He also asked if all those elections should have been thrown out.

Day responded in the positive.

“Do we set up rules that sometimes we observe and sometimes not?” Day said. “What might seem minor to the court now could plant the seed for fraud later.”

He also noted the margin of victory in an election is significant. In a situation where the illegally assisted voters’ ballots don’t change the outcome of an election, there is no reason for a re-election. However, in this case the margin is one vote.

Gunter, on Rizzo’s behalf, reiterated the point made in trial that the lack of voter assistance cards was the fault of the election judges. Their mistake, he argued, is not reason to throw out an election. He also made the new point that testimony never revealed whether the people improperly receiving assistance voted with Democratic ballots at all. In a primary, they could have voted on a Republican or other ballot, which wouldn’t impact the Rizzo-Royster race.

Raymond did not take a position concerning a new election, as has been the Election Board’s position. Instead, he said, he is concerned about logistics. With the general election fast approaching, there isn’t much time to organize a new primary, and more than 100 absentee ballots have already been sent out.

“Voting has, as we speak, already started in the November election,” Raymond said.

Day countered that there is precedent for changing a ballot even after absentee ballots have been mailed out. He cited a case from Pennsylvania in which 27,000 had already been mailed, yet the court ruled in favor of a change. Those who vote absentee, he argued, understand they undertake that risk.

One of Judge Smart’s final comments was in regards to Libertarian candidate for the District 40 seat, Sean O’Toole. Rhetorically, he questioned, doesn’t O’Toole have the right to know whom he is running against for his own campaign? If the judges do order a new election, it would take place quite close to the general election.

The judges will issue their ruling by this Friday, Oct. 15.